*

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0252p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RODNEY COCHRAN,

Plaintiff-Appellee,

v.

DAN GILLIAM and DON GILLIAM,

individually,

Defendants-Appellants.

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No. 10-6274

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 09-00302—Joseph M. Hood, District Judge.

Argued: April 29, 2011

Decided and Filed: September 2, 2011 

Before: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

_________________

COUNSEL

ARGUED: Winter R. Huff, LAW OFFICES OF JOHN G. PRATHER, Somerset,

Kentucky, for Appellants. Cameron Cole Griffith, THEODORE H. LAVIT &

ASSOCIATES, P.S.C., Lebanon, Kentucky, for Appellee. ON BRIEF: Winter R. Huff,

LAW OFFICES OF JOHN G. PRATHER, Somerset, Kentucky, for Appellants.

Theodore H. Lavit, THEODORE H. LAVIT & ASSOCIATES, P.S.C., Lebanon,

Kentucky, for Appellee. 

_________________

OPINION

_________________

ZOUHARY, District Judge. In this 42 U.S.C. § 1983 action, DefendantsAppellants Dan and Don Gilliam (collectively, “Gilliams”) appeal the district court’s

1
No. 10-6274 Cochran v. Gilliam, et al. Page 2

denial of their motion for summary judgment on the basis of qualified immunity.

Plaintiff-Appellee Rodney Cochran alleges the Gilliams, both deputy sheriffs in Lincoln

County, Kentucky, violated his constitutional rights by assisting Cochran’s landlords in

wrongfully seizing all his personal property without due process during the execution

of an eviction order. For the reasons set forth below, we AFFIRM the district court’s

decision denying summary judgment.

BACKGROUND

Cochran’s Eviction

In 2008, Rodney Cochran leased a home from Charles and Laila Williams

(“Landlords”) in Stanford, Kentucky. Cochran fell behind on his rent and, as of August

2008, Cochran owed the Landlords $1,225 for a portion of the July rent, rent for the

entire month of August, and late fees. Cochran v. Folger, 740 F. Supp. 2d 923, 927

(E.D. Ky. 2010).

 The Landlords filed a Forcible Detainer Complaint in state court on August 18,

2008. While it is not clear whether Cochran received the Complaint or was aware of the

scheduled hearing, the state district court ruled against Cochran and issued a Judgment

in Forcible Detainer, stating Cochran “was guilty of forcible detainer as charged and that

[the Landlords] have [sic] restitution of the premises . . . and recover of the Defendant

the costs expended herein.” Id. at 927–28. In connection with this Judgment, the court

issued a standard form “Eviction Notice: Warrant for Possession” on September 5, 2008.

The Notice read:

To the Sheriff or any other Constable of Lincoln County: Defendant

[Cochran] on 8-28-2008 was found guilty of a forcible detainer of the

premises located at 3700 HWY 2141, Stanford, KY 40484 to the injury

of the Plaintiff [Mr. and Mrs. Williams]. Defendant having failed to file

an appeal on or before the seventh day after the finding, and upon request

of the Plaintiff, you are commanded, in the name of the Commonwealth

of Kentucky, to put the Plaintiff in possession of the premises, and to

make due return to the Court within 8 days showing you have executed

this warrant.
No. 10-6274 Cochran v. Gilliam, et al. Page 3

This Eviction Notice was executed on Cochran’s residence three days later by

the Landlords, the Gilliams, and another deputy sheriff who is not a party to this lawsuit.

Id. at 928. Cochran does not challenge the validity of the Judgment or the Eviction

Notice.

Execution of the Eviction Notice

The events that occurred on September 8, during the execution of the Eviction

Notice, form the basis of this lawsuit. The following paragraphs, excerpted from the

district court opinion, recite the pertinent facts:

[The] Williams and Deputy Sheriffs Don Gilliam, Bill Schnitzler

and Dan Gilliam arrived at Cochran’s home at some point during the day

to execute the Warrant for Possession. It is undisputed that the Warrant

for Possession, and the Judgment in Forcible Detainer on which it was

based, were the only authority for the Williamses and the deputy sheriffs’

actions that day. It is further undisputed that the deputy sheriffs only

reviewed and relied upon the Warrant for Possession for their actions.

According to Don Gilliam’s Affidavit, after reviewing the

Warrant for Possession, he realized that it was silent as to Cochran’s

personal property located at the premises. Don Gilliam told Mr.

Williams to secure Cochran’s personal property as he expected that

Cochran would want to take it following the eviction.

Mr. Williams advised Don Gilliam that the Lincoln County

Attorney had told him that Cochran’s personal property could be sold to

recover Mr. and Mrs. Williams’ losses. Don Gilliam states that he then

contacted the county attorney and was told that Mr. Williams had a “right

to sell the property”. Using a key to enter the residence, Mr. and Mrs.

Williams, with the assistance of others, removed Cochran’s personal

property from the residence.

Cochran was at work when he received a message from his

neighbor, Dr. Shane Randolph, indicating that the Williams and the

deputy sheriffs were at Cochran’s home. Cochran’s mother and sister

were already on site by the time he arrived.

The deputy sheriffs on site threatened to restrain and/or arrest

anyone who attempted to interfere with the Williams’ procurement of

Cochran’s personal property. Cochran, his neighbors, and family made

calls to 911 and the Kentucky State Police throughout the day to try to

stop the Williams from taking Cochran’s personal belongings. Dr.
No. 10-6274 Cochran v. Gilliam, et al. Page 4

Randolph attempted to call the Sheriff, Curt Folger, but was informed

that he was out of town on September 8, 2008 and could not be reached.

Don and Dan Gilliam were both present on the premises during

the removal of Cochran’s personal property. Don Gilliam admits that he

paid $100 to the Williams for a television that was removed from

Cochran’s home. He states that he purchased the television for use at the

Sheriff’s office. Cochran’s guns and prescription medications were also

taken by the deputy sheriffs. At the Williams’ request, the guns were

turned over to Mr. Williams’ uncle, Constable John Williams the next

day.

Cochran asked the Williams for the return of his personal

property and offered money in exchange for the return of his property.

Those requests were denied. To date, none of Cochran’s personal

belongings have been returned to him.

Cochran, 740 F. Supp. 2d at 928–29 (internal footnote omitted). Shortly after the

eviction, the Landlords declared bankruptcy, further thwarting Cochran’s recovery

efforts.

Disputed Details

While not disputing the accuracy of the district court’s statement of facts, the

parties disagree about several additional details of the events on September 8.

First, the Gilliams dispute the district court’s statement that Don Gilliam only

reviewed and relied upon the Warrant for Possession in support of his actions that day.

While it is true that the Warrant was the only document relied upon by Don Gilliam, he

spoke with the county attorney by phone to inquire whether the Landlords could indeed

sell Cochran’s property to recover the rent owed. The Gilliams claim the district court

did not consider this additional supporting basis for the Gilliams’ actions. The Gilliams’

claim is incorrect; the district court explicitly considered Don Gilliam’s conversation

with the county attorney, comparing his conversation to the scenario in Soldal v. Cook

County, Ill., 506 U.S. 56–58 (1992). Cochran, 740 F. Supp. 2d at 931 n.3.

Second, the parties disagree about the calls made to the Kentucky State Police.

The Gilliams claim Cochran called the state police but then sent the responding officers

away once they arrived. In contrast, Cochran points to the call report, obtained from the
No. 10-6274 Cochran v. Gilliam, et al. Page 5

state police, indicating a deputy sheriff advised the responding state police that “they

will handle it.” While the call report does not explicitly name the sheriff’s officer, the

record supports that it was a deputy sheriff, not Cochran, who turned away the state

police.

Third, the parties disagree over the Gilliams’ actual involvement in the alleged

seizure of Cochran’s personal property. While the Gilliams attempt to portray their

presence that day as limited to their official duties of serving the Warrant for Possession

and keeping the peace, this generic portrayal is not supported by the record. The

Gilliams admit to helping the Landlords load Cochran’s property onto the Landlords’

vehicles, stating: “[T]he deputies did assist Mr. and Mrs. Williams . . . in loading

property.” Furthermore, the record contains photos that show the Gilliams, dressed in

their uniforms, removing Cochran’s property from the house and loading it onto a blue

pickup truck. Taken together and viewing these facts in the light most favorable to

Cochran, as we must at this juncture, these facts show the Gilliams’ actions that day

were not limited to simply serving the Warrant and keeping the peace.

Procedural Background

Cochran filed this lawsuit pursuant to 42 U.S.C. § 1983 and the Fourth, Fifth, and

Fourteenth Amendments, alleging violations of his constitutional rights by the Gilliams.

Cochran contends the Gilliams were acting under the color of Kentucky law in their role

as deputy sheriffs when they executed the eviction notice, and that the Gilliams carried

out the eviction in an “objectively unreasonable” manner that permitted Cochran’s

personal property to be taken away by the Landlords and unknown parties. Specifically,

Cochran argues the Gilliams violated his Fourth Amendment right to be free from

unreasonable seizures, and his Fourteenth Amendment due process rights, when the

Gilliams, acting in their role as deputy sheriffs, assisted the Landlords in removing and

transporting away all his personal property from the house. While Cochran

acknowledges the Landlords had the right to remove his property and place it outside on

the sidewalk, Cochran claims there was no legal basis for the Gilliams to assist in

dispossessing him of his property.
No. 10-6274 Cochran v. Gilliam, et al. Page 6

The district court disposed of all claims, except for the Fourth Amendment

seizure and Fourteenth Amendment due process claims against the Gilliams in their

individual capacities, and a claim for punitive damages. The Gilliams appeal only the

district court’s denial of qualified immunity on the Fourth and Fourteenth Amendment

claims, arguing that Cochran failed to show a violation of constitutional rights or

alternatively that any violation of Cochran’s rights was not “clearly established” as a

matter of law.

ANALYSIS

Standard of Review

A denial of summary judgment on the issue of qualified immunity is immediately

appealable. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Kennedy v. City of Villa Hills,

Ky., 635 F.3d 210, 213 (6th Cir. 2011). “We review the denial of summary judgment on

grounds of qualified immunity de novo because application of this doctrine is a question

of law.” McCloud v. Testa, 97 F.3d 1536, 1541 (6th Cir. 1996) (citation omitted).

However, “[a] defendant who is denied qualified immunity may file an interlocutory

appeal with this Court only if that appeal involves the abstract or pure legal issue of

whether the facts alleged by the plaintiff constitute a violation of clearly established

law.” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citation omitted).

Because the subject of the interlocutory appeal is limited to the pure legal issue

of whether the facts alleged constitute a violation of clearly established law, “a defendant

seeking qualified immunity must be willing to concede to the facts as alleged by the

plaintiff and discuss only the legal issues raised by the case.” Shehee v. Luttrell, 199

F.3d 295, 299 (6th Cir. 1999) (citation omitted). In considering the legal issue of

qualified immunity, this Court’s ability to consider “the facts as alleged by the plaintiff”

encompasses “the facts in the entire record, interpreted in the light most favorable to the

plaintiff.” Bomar v. City of Pontiac, 643 F.3d 458, 462 (6th Cir. 2011) (citation

omitted). “Only if the undisputed facts or the evidence viewed in the light most

favorable to the plaintiff fail to establish a prima facie violation of clear constitutional
No. 10-6274 Cochran v. Gilliam, et al. Page 7

law may we decide that the defendant is entitled to qualified immunity on an

interlocutory appeal.” Berryman, 150 F.3d at 563 (citations omitted).

Qualified Immunity

The affirmative defense of qualified immunity shields “government officials

performing discretionary functions . . . 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

(1982); McKinley v. City of Mansfield, 404 F.3d 418, 429 (6th Cir. 2005). An official

may, however, be held personally liable for civil damages for unlawful official action

if that action was not objectively reasonable in light of the legal rules that were “clearly

established” at the time it was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987).

This “objective legal reasonableness” standard analyzes claims of immunity on a

fact-specific, case-by-case basis to determine whether a reasonable official in the

defendant’s position could have believed that his conduct was lawful, judged from the

perspective of the reasonable official on the scene. See Anderson, 483 U.S. at 640–41.

To that end, the court makes two inquiries when resolving qualified immunity

claims: (1) whether the facts, viewed in the light most favorable to the plaintiff, show

a violation of a constitutional right, and (2) whether the right at issue was “clearly

established” at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009). The court can consider these two prongs in either order. Pearson, 555 U.S. at

236.

When determining whether a right is “clearly established,” “[t]he contours of the

right must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson, 483 U.S. at 640. Further, “an action’s

unlawfulness can be apparent from direct holdings, from specific examples described as

prohibited, or from the general reasoning that a court employs.” Feathers v. Aey, 319

F.3d 843, 848 (6th Cir. 2003) (citing Hope v. Pelzer, 536 U.S. 730, 740–41 (2002)).
No. 10-6274 Cochran v. Gilliam, et al. Page 8

Fourth Amendment Seizure

A constitutional claim brought under 42 U.S.C. § 1983, such as Cochran’s Fourth

Amendment seizure claim here, “by its terms requires that any alleged constitutional

violation be taken under color of state law, either by government actors or private

individuals acting as agents of the state.” Garcia v. Dykstra, 260 F. App’x 887, 895 (6th

Cir. 2008). Typically, government officials “may not be called to answer for the actions

of private parties,” such as the Landlords’ act of taking possession of all Cochran’s

property that underpins the factual scenario of this case. Id.

However, while the Gilliams did not cart away all of Cochran’s possessions, the

record makes clear the Gilliams were not simply innocent bystanders. Instead, the

Gilliams actively aided the Landlords in removing Cochran’s belongings from the house

and into a pickup truck for the Landlords to haul away. Thus, the relevant question

becomes at what point have the police “‘become so entangled in [a] private self-help

remedy that they may be held to answer under [Section] 1983?’” Id. (quoting Meyers

v. Redwood City, 400 F.3d 765, 771 (9th Cir. 2005)). This question framed the district

court’s analysis denying the qualified immunity claim, and now frames our de novo

review.

Violation of a Constitutional Right

The Gilliams offer two reasons why their actions that day did not constitute a

seizure of Cochran’s property in violation of the Fourth Amendment: (1) the Gilliams

played no active role in the removal of Cochran’s property, and (2) Kentucky law did

not prohibit or make unlawful the removal of Cochran’s property by the Landlords, thus

absolving the Gilliams of any wrongdoing. Both arguments are without merit.

Under the Fourth Amendment, “[a] ‘seizure’ of property occurs when there is

some meaningful interference with an individual’s possessory interests in that property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984). There is no argument that Cochran

has a constitutional right to the personal property he keeps in his leased residence. See

Soldal, 506 U.S. at 69; see also Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (“One
No. 10-6274 Cochran v. Gilliam, et al. Page 9

of the main rights attaching to property is the right to exclude others”) (citing W.

Blackstone, COMMENTARIES, Book 2, ch. 1). It is also undisputed that the Gilliams did

not take all of Cochran’s property, but they actively assisted those who did. The

question then becomes whether the Gilliams “meaningfully interfered” with Cochran’s

interest in his property.

What actions can constitute a meaningful interference with property is

determined under a reasonableness analysis. Soldal, 506 U.S. at 71 (“‘[R]easonableness

is still the ultimate standard’ under the Fourth Amendment”) (quoting Camara v. Mun.

Ct. of S.F., 387 U.S. 523, 539 (1967)). While the term “reasonableness” standing alone,

without context, is of limited value, the Supreme Court’s dicta on Fourth Amendment

seizures is instructive. “What matters is the intrusion on the people’s security from

governmental interference. Therefore, the right against unreasonable seizures would be

no less transgressed if the seizure of the house was undertaken to collect evidence, verify

compliance with a housing regulation, effect an eviction by the police, or on a whim, for

no reason at all.” Id. at 69.

We agree with the district court’s conclusion, relying on the Supreme Court’s

decision in Soldal, that “[p]articipation of deputy sheriffs in an improper seizure of

personal property for sale constitute[s] a seizure in violation of the Fourth Amendment.”

Cochran, 740 F. Supp. 2d at 931 (citing Soldal, 506 U.S. at 56).

The Supreme Court’s decision in Soldal addressed a situation in which deputy

sheriffs not only stood by to keep the peace during the repossession of a trailer home but

played an active role in facilitating the wrongful repossession of the trailer. Soldal, 506

U.S. at 57–59. In reaching its decision, the Court rejected a narrow reading of the Fourth

Amendment by the Seventh Circuit that required not only a “technical” physical seizure

of property but also a concurrent violation of the property owner’s privacy or liberty

interests. Id. at 62–63. Instead, the Court reiterated its prior holding in Jacobsen that

the Fourth Amendment protects property, as well as, and in addition to, privacy, but that

a violation of the Fourth Amendment does not require a violation of both the owner’s

privacy and his interest in the personal property. Id. at 62–63 (citing Jacobsen, 466 U.S.
No. 10-6274 Cochran v. Gilliam, et al. Page 10

at 113), 65. The Court also noted the Fourth Amendment extends both to a house and

personal effects. Id. at 63 n.7. The Court held the deputy sheriffs, by telling Soldal they

were there to prevent his interference in the repossession and by refusing to stop a

legally questionable repossession by others, constituted a Fourth Amendment seizure,

despite the fact the deputies did not “enter[] Soldal’s house, rummage[] through his

possessions, or . . . interfere[] with his liberty in the course of the eviction.” Id. at 62.

Instead, the deputies stood by while others yanked the trailer home from its moorings

and towed it away. Id. at 59.

This Court “has held that an officer’s mere presence at the scene to keep the

peace while parties carry out their private repossession remedies does not render the

repossession action that of the state.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir.

2007) (citing United States v. Coleman, 628 F.2d 961, 963–64 (6th Cir. 1980)).

However, in cases where police officers take an active role in a seizure or eviction, they

are no longer mere passive observers and courts have held that the officers are not

entitled to qualified immunity. See Haverstick Enter., Inc. v. Fin. Fed. Credit, Inc., 32

F.3d 989, 995 (6th Cir. 1994). This is particularly true when there is neither a specific

court order permitting the officers’ conduct nor any exigent circumstance in which the

government’s interest would outweigh the individual’s interest in his property. Cf.

Flatford v. City of Monroe, 17 F.3d 162, 169–71 (6th Cir. 1994). 

Here, the record contains photos showing at least one of the two Gilliam brothers

carrying items out of the house and helping the Landlords load Cochran’s property into

a pickup truck. These affirmative acts take the Gilliams beyond the acts of the deputies

in Soldal who never entered the house or physically moved any of the property. The

Gilliams’ actions place them squarely within the Supreme Court’s reaffirmation that a

physical seizure of the property constitutes a Fourth Amendment violation.

Further, the Gilliams interposed themselves between Cochran and the Landlords

to allow the Landlords to take Cochran’s property. The Gilliams allegedly threatened

to arrest Cochran if he interfered with the Landlords’ actions, and sent away the state

police officer that Cochran had called for assistance. Then, in a scenario similar to that
No. 10-6274 Cochran v. Gilliam, et al. Page 11

in Soldal, Don Gilliam, aware of the possible questionable nature of the removal of

Cochran’s belongings, attempted to clarify the situation by calling the county attorney.

The Gilliams then even went so far as to buy Cochran’s TV from the Landlords. These

acts, taken together, indicate the Gilliams’ presence that day went beyond the

constitutionally permissible detached keeping of the peace function and crossed over

into a “meaningful interference” with Cochran’s property.

The Gilliams further argue that because they received advice from the county

attorney, their actions were reasonable. Like the district court, we reject this argument.

After executing the eviction notice, Don Gilliam realized that the form eviction

notice was silent as to Cochran’s personal property and also failed to state any amount

the Landlords were entitled to recover for past rent or costs. Because there was no

mention of Cochran’s personal property in the notice, Don Gilliam suggested to the

Landlords that they secure all of Cochran’s property. The county attorney allegedly

advised the Landlords they could sell Cochran’s personal property to recover some of

the losses from the eviction. Don Gilliam then called the county attorney to verify such

advice and was told that the Landlords had a right to sell the property. Based on this

legal advice, the Gilliams claim their actions were reasonable and thus cannot constitute

a Fourth Amendment violation.

However, a law enforcement officer’s phone call to a county or district attorney

for general guidance when confronted with a situation where there is no legal basis for

the contemplated actions does not automatically convert unreasonable actions into

reasonable actions. “This circuit has determined that reliance on counsel’s legal advice

constitutes a qualified immunity defense only under ‘extraordinary circumstances,’ and

has never found that those circumstances were met.” Silberstein v. City of Dayton, 440

F.3d 306, 318 (6th Cir. 2006); see also Buonocore v. Harris, 134 F.3d 245, 253 (4th Cir.

1998) (“[A]lthough reliance on counsel’s advice may indeed be a factor to be considered

in deciding whether a defendant has demonstrated an ‘extraordinary circumstance,’

reliance on legal advice alone does not, in and of itself, constitute an ‘extraordinary

circumstance’ sufficient to prove entitlement to the exception to the general Harlow [v.
No. 10-6274 Cochran v. Gilliam, et al. Page 12

Fitzgerald, 457 U.S. 800 (1982),] rule.”). Defendants identify no extraordinary

circumstance in this case, and we fail to find any. 

Nor do we find any merit in the attempt to factually distinguish Soldal from this

case. The Gilliams argue that the landlord in Soldal did not have an eviction notice

authorizing the removal of the trailer, while here the Landlords did have a valid eviction

notice. However, a valid eviction notice in hand is not the operative fact. Both in Soldal

and here, a deputy sheriff called a county attorney to ask whether to intervene. The

deputy sheriff in Soldal was concerned because there was no eviction notice. Here, there

was a valid eviction notice but the Gilliams were concerned with the confiscation of

Cochran’s personal property because the eviction notice made no provision for such a

taking. Thus, while the deputies in Soldal oversaw an unlawful eviction, here the

Gilliams facilitated an unlawful taking of Cochran’s belongings. It is not reasonable for

the Gilliams to oversee and personally assist the Landlords in taking possession of

Cochran’s belongings when there was no apparent legal basis for such action.

In addition to their attempt to distinguish Soldal, the Gilliams argue that

Kentucky state law supports their reasonable belief that the Landlords had a right to take

Cochran’s property, thereby absolving them of any constitutional wrongdoing. The

Gilliams point to a Kentucky state statute that allows a landlord lien on a tenant’s

personal property to secure payment of rent. Ky. Rev. Stat. (“K.R.S”) § 383.070.

However, as the district court correctly noted, this section of the Kentucky code

merely gives the landlord a lien on the personal property—the lien does not give a

landlord carte blanche to take possession of the tenant’s property without going through

the proper judicial processes. See K.R.S. § 383.030. It is unclear to this Court how it

could be construed as reasonable that two deputy sheriffs, knowing that the eviction

notice was silent as to the amount owed to the landlord and the disposition of the

tenant’s personal property, could believe that a “swat team” had the right to the tenant’s

worldly possessions.
No. 10-6274 Cochran v. Gilliam, et al. Page 13

Whether the Right Was “Clearly Established” 

Having established the Gilliams violated Cochran’s Fourth Amendment rights,

we consider the second prong of the Saucier analysis—whether the right at issue was

“clearly established” at the time of the Gilliams’ conduct. The Gilliams argue that, even

if there was a violation of Cochran’s Fourth Amendment right based upon an

unreasonable seizure of his personal property, there was no “clearly established”

decision or precedent on point that would have placed them on notice that their conduct

could be construed as a constitutional violation. We disagree.

The Gilliams argue for an overly narrow reading of the “clearly established”

standard, one in which it would appear no case would be sufficiently on point if the facts

at issue were not identical. The Gilliams’ reasoning is untenable in the larger view of

qualified immunity determinations. We are not alone in rejecting this narrow reading.

As the Supreme Court has stated: “This is not to say that an official action is protected

by qualified immunity unless the very action in question has previously been held

unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be

apparent.” Anderson, 483 U.S. at 640 (citations omitted).

Furthermore, this Court has employed a more reasonable, common sense

approach to the “clearly established” analysis, one that acknowledges that, while every

situation will involve slightly different factual scenarios, they are not so different that

courts and public officials cannot intuit the contours of the rights at issue. Under this

standard, a right is “clearly established,” when “‘[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Feathers, 319 F.3d at 848 (quoting Anderson, 483 U.S. at 640).

Additionally, “an action’s unlawfulness can be apparent from direct holdings, from

specific examples described as prohibited, or from the general reasoning that a court

employs.” Hope, 536 U.S. at 740–41.

This Court is satisfied that the Fourth Amendment violation was clearly

established. The Supreme Court decided Soldal in 1992, well before the conduct at issue

here, and the standard has long been that when police neither encourage nor direct a
No. 10-6274 Cochran v. Gilliam, et al. Page 14

private individual during a repossession, but merely “stand by in case of trouble,” there

is no liability. United States v. Coleman, 628 F.2d 961, 964 (6th Cir. 1980). See also

Haverstick Enter., Inc., 32 F.3d 989, 995 (a police officer’s mere presence as a “civil

standby” to observe and maintain the peace at a lawful statutory repossession entitles a

defendant to qualified immunity). However, in cases such as here where officers take

an active role in a seizure or eviction, this Circuit has held they may no longer be entitled

to qualified immunity. See Soldal, 506 U.S. at 69; Flatford, 17 F.3d at 170 n.8 (quoting

Soldal 506 U.S. at 69).

Finally, we note our application of Soldal is consistent with other circuits

regarding police officers taking active roles in otherwise private self-help remedies.

Generally, “officers are not state actors during a private repossession if they act only to

keep the peace, but they cross the line if they affirmatively intervene to aid the

repossessor.” Marcus v. McCollum, 394 F.3d 813, 818–19 (10th Cir. 2004) (citing

similar cases from the Fifth, Ninth, and Eleventh Circuits). The Second Circuit has

discussed police officers’ involvement in repossessions as a continuum, stating: “When

an officer begins to take a more active hand in the repossession, and as such involvement

becomes increasingly critical, a point may be reached at which police assistance at the

scene of a private repossession may cause the repossession to take on the character of

state action.” Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999). See also Booker

v. City of Atlanta, 776 F.2d 272, 274 (11th Cir. 1985) (police officer’s “arrival with the

repossessor gave the repossession a cachet of legality and had the effect of intimidating

[the plaintiff] into not exercising his right to resist, thus facilitating the repossession.

Even if unintended, such an effect could constitute police ‘intervention and aid’

sufficient to establish state action.”).

Accordingly, we reject the Gilliams’ argument that their active involvement in

assisting the Landlords in seizing Cochran’s property was objectively reasonable in light

of the legal rules that were “clearly established” at the time. Anderson, 483 U.S. at 639.

While the Gilliams’ involvement may have begun as a civil standby to serve the eviction

notice and simply keep the peace, their actions quickly turned into active participation
No. 10-6274 Cochran v. Gilliam, et al. Page 15

in the seizure of Cochran’s property—conduct explicitly foreclosed by the holding of

Sodal, and in line with the reasoning from Coleman and Haverstick. 

Fourteenth Amendment Due Process

Because we agree with the district court’s denial of qualified immunity with

respect to Cochran’s Fourth Amendment claim, we need not address the qualified

immunity argument with respect to the Fourteenth Amendment due process claim. See

Saucier, 533 U.S. at 200–01 (“Qualified immunity is ‘an entitlement not to stand trial

or face the other burdens of litigation.’ The privilege is ‘an immunity from suit rather

than a mere defense to liability . . . .’”) (quoting Mitchell, 472 U.S. at 526).

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of the

Gilliams’ motion for summary judgment on the basis of qualified immunity.