*

Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for

the Ninth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6026.

Roy L. COFIELD, Rita F. Cofield, Plaintiffs-Appellants,

v.

RANDOLPH COUNTY COMMISSION, a governmental entity; Randolph

County Sheriff's Department, a governmental entity, Defendants,

Ricky Hancock, an employee of the Randolph County Commission

and/or Randolph County Sheriff's Department; Danny Belyeu

Chevrolet, Inc.; Danny Belyeu, individually and in his capacity as

President of Danny Belyeu Chevrolet; Scott Evans, an employee of

Danny Belyeu Chevrolet, Inc., and/or Danny Belyeu; Fictitious

Defendant(s), A, B, or C, Defendants-Appellees.

Aug. 6, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-93-D-612-F), Ira De Ment, Judge.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge and GOODWIN*

,

Senior Circuit Judge.

TJOFLAT, Chief Judge:

I.

The controversy in this case stems from an automobile

transaction between a Chevrolet dealership and husband and wife

buyers. The buyers, Roy and Rita Cofield, were purchasing a new

Chevrolet Blazer from Danny Belyeu Chevrolet. As part of the

purchase price, the Cofields traded in to the dealership a car, a

pick-up truck, and a camper trailer. The transaction collapsed

when the camper turned out to be a 1978 model, rather than a 1987

model (which is how the camper was described in the paperwork on

the sale)—and, thus, was of considerably less value than the
 1

The Cofields claim that they did not represent the camper

as a 1987 model. Nonetheless the transaction included, as part

of the purchase price of the Blazer, the trade in of a 1987

camper. The Cofields do not dispute that the difference in value

between the two models amounted to several thousand dollars. 

Whether the Cofields intentionally deceived the dealership is of

no moment. 

dealership expected.1

Employees of the dealership discovered the mistake the same

day the deal was closed. Danny Belyeu, the owner of the

dealership, decided to cancel the transaction by "repossessing" the

Blazer and returning to the Cofields the consideration (the camper,

automobile, and pick-up truck) they had given for it. Belyeu was,

however, concerned that the Cofields might forcibly resist the

repossession of the Blazer. He therefore instructed his employees

to contact the local sheriff's office before proceeding with the

repossession. They did so, and Deputy Sheriff Ricky Hancock

accompanied two Belyeu employees, Scott Evans and John Bullock, to

the Cofield residence.

Bullock's role was to take the Blazer back to the dealership;

Hancock accompanied Evans to the front door of the Cofield house.

The parties dispute whether the Blazer had left the premises before

or after Deputy Hancock rang the Cofields's doorbell. There is no

dispute, however, that the Cofields objected to the removal of the

Blazer from their premises.

Following the dealership's repossession of the Blazer, the

Cofields brought this action against the dealership, Danny Belyeu,

Scott Evans, the Randolph County Commission, the Randolph County

Sheriff's Department, and Deputy Hancock. Their complaint
 2

We refer to the Cofields' amended complaint as their

"complaint." In count I, which pertained solely to Deputy

Hancock, they alleged violations of the Fourth and Fourteenth

Amendments to the United States Constitution. In count V, which

also pertained solely to Deputy Hancock, they alleged "failure to

supervise" in violation of Alabama law. In count II, which

applied only to Danny Belyeu Chevrolet, they alleged breach of

contract in violation of Alabama law. In counts III, IV, VI,

VII, and IX, which applied to all of the defendants, they alleged

trespass, negligence, conversion, outrage, and conspiracy, all in

violation of Alabama law. Finally, count VIII alleged a claim

against all the defendants under Ala.Code 6-5-370, which provides

a civil cause of action for acts that also constitute a felony. 

 3

Count I also alleged that Hancock deprived the Cofields of

the equal protection of the laws in violation of the Fourteenth

Amendment. The district court granted Hancock summary judgment

on that claim as well as the claims under the Fourth Amendment

and the Due Process Clause. In this appeal, the Cofields do not

contest the court's disposition of their equal protection claim. 

contained ten counts.2 Only a portion of count I, brought against

Deputy Hancock, is at issue in this appeal. In that portion, the

Cofields sought money damages against Hancock in his individual

capacity under 42 U.S.C. § 1983, alleging violations of the Fourth

and Fourteenth Amendments to the United States Constitution.

Specifically, they alleged that Hancock effected a "seizure" of

their automobile in violation of the Fourth Amendment and deprived

them of "procedural due process" in violation of the Fourteenth

Amendment.3

Deputy Hancock's answer plead the defense of qualified

immunity with respect to the constitutional claims. The district

court granted Hancock summary judgment on that ground and dismissed

count I. Because this left no federal claims pending against any

defendant, the court dismissed without prejudice the Cofields'

pendent state law claims against Hancock and the other defendants.

 The Cofields appeal the granting of summary judgment on the
Fourth Amendment and Due Process claims. We review the district

court's grant of summary judgment de novo. See Reserve, Ltd. v.

Town of Longboat Key, 17 F.3d 1374, 1377 (11th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995).

II.

 "The law attending qualified immunity is well-settled."

Leeks v. Cunningham, 997 F.2d 1330, 1333 (11th Cir.1993).

Government officials enjoy immunity from civil damages provided

"their conduct does not violate clearly established constitutional

or statutory rights of which a reasonable person should have

known." Id., citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 2728, 73 L.Ed.2d 396 (1982). "For a "right' to be

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.' " Rodgers v. Horsley, 39

F.3d 308, 310 (11th Cir.1994), citing Anderson v. Creighton, 483

U.S. 635, 639-40, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

Appellants theorize that the taking of the Blazer was clearly

wrongful insofar as it contravened state law (i.e., that the

dealership was not entitled to repossess the vehicle because the

appellants had not defaulted under the sales contract). Moreover,

they claim, Hancock knew the dealership was not entitled to

repossess, he knew the dealership was nevertheless planning to

repossess, and he helped them do so. They argue that Hancock

thereby effected a "seizure" of their property in violation of the

Fourth Amendment. Additionally, they argue, his participation in

the taking converted what would otherwise have been an instance of
"self-help repossession" into a levying of property by a law

enforcement officer without a writ of attachment, in violation of

the procedural component of the Due Process Clause.

 Appellant's argument fails at the first step. The Alabama

Code provides that "[u]nless otherwise agreed a secured party has

on default the right to take possession of the collateral. In

taking possession a secured party may proceed without judicial

process if this can be done without breach of the peace...."

Ala.Code § 7-9-503 (1993). The Code does not define the word

"default," leaving this to the parties to the security agreement

and to the common law. See 4 James J. White & Robert S. Summers,

Uniform Commercial Code § 34-2 (4th ed. 1995). In the absence of

a particular definition adopted by the parties, the ordinary

meaning of "default" is "failure to pay." See 9A Ronald A.

Anderson, Uniform Commercial Code § 9-501:27 (3d ed. rev. 1994).

We think it self-evident that failure of consideration, which is

what occurred in this case, constitutes failure to pay.

 Appellants point out that the "Sales Contract," which

contains the standard default and repossession clauses, does not

itself include any representation (by them) as to the age of the

camper, and that the "Vehicle Invoice," which does contain such a

representation, does not include any default or repossession

clauses. The two documents, they argue, are wholly separate. We

do not address the merits of this argument. Failure of

consideration can constitute a default and can thereby entitle a

creditor to repossess the collateral. Accordingly, it could not

have been "clear" to Deputy Hancock that the repossession was
 4

Appellants point to the fact that early in the day

following the repossession, Deputy Hancock returned to their

house and filled out a "stolen vehicle report" for the vehicle. 

This, they contend, supports the proposition that he knew the

taking was wrongful. We are not persuaded. The Cofields had

argued strenuously—to Hancock and others—that they were not in

default. That Deputy Hancock obligingly filled out a stolen

vehicle report is of no moment. 

 5Furthermore, even were Soldal on point, it was handed down

well after the events that gave rise to this lawsuit. Thus, even

if it established that a deputy sheriff's presence at a lawful

repossession somehow transforms that repossession into a Fourth

Amendment "seizure," this proposition was not "clearly

established" for qualified immunity purposes when the

repossession in this case occurred. 

"wrongful."4 As noted, then, appellants' argument fails at the

first step; Hancock could not have known the taking of the Blazer

was wrongful.

Appellants also suggest that a deputy sheriff simply cannot be

present during an instance of self-help repossession. Even if a

repossession is lawful, they argue, if a deputy sheriff is present,

that repossession becomes a "seizure" by the state. Moreover, they

contend, if he is present the repossession is no longer an instance

of "self help" and, accordingly, must be preceded by judicial

process. Appellants have pointed us to no cases, and we have found

no cases, that support either proposition. Soldal v. Cook County,

506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), on which

appellants rely heavily, is readily distinguishable. In Soldal,

deputy sheriffs assisted in a forcible eviction that was patently

unlawful.5

 Id. at 56-60, 113 S.Ct. at 541-42.

 Finally, we think it plain that an officer's mere presence

during a lawful repossession is of no moment. Indeed, arguably an

officer's "mere presence to prevent a breach of the peace" would
 6

Moreover, of course, in Booker and Soldal we were concerned

only with the requisite state action to establish subject matter

jurisdiction. Neither case supports the theories of liability

advanced by the Cofields—i.e., that an officer's presence or aid

at a repossession effects a Fourth Amendment "seizure" by the

state or that his presence or aid transforms that repossession

into a "levying" of property. 

not even constitute state action sufficient to give the court

subject matter jurisdiction. See Booker v. City of Atlanta, 776

F.2d 272, 274 (11th Cir.1985). While our cases suggest that state

action might be present if an officer were to facilitate a

repossession, see id., see also Menchaca v. Chrysler Credit Corp.,

613 F.2d 507, 513 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct.

358, 66 L.Ed.2d 217 (1980), the Cofields's own testimony places the

Blazer off, or exiting, the premises by the time they reached their

front door to contest the repossession. The implication is that

the repossession had been completed before the Cofields had any

contact with Hancock.6

III.

 It is anything but clear that the repossession effected by

Danny Belyeu Chevrolet was unlawful. Moreover, according to

appellant's own version of the facts, the repossession appears to

have been completed prior to Hancock's involvement. Finally, we

have found no precedent clearly holding that an officer's mere

presence at (or after) a lawful instance of self-help repossession

can amount to a violation of the Fourth and Fourteenth Amendments.

Thus we conclude that Hancock could not have known his actions

might violate anyone's constitutional rights. He is entitled to

qualified immunity.

AFFIRMED.
GOODWIN, Senior Circuit Judge, dissenting:

When reviewing a summary judgment, we must resolve all

reasonable inferences of fact in favor of the nonmoving party.

Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988). Because I

believe a question of material fact exists, (whether Hancock was

there merely to "keep the peace"); and because the law was clearly

established that a sheriff without a court order could not lawfully

participate in the seizure of private property, I respectfully

dissent.

The majority concludes that Hancock could not have assisted

with the repossession because the Blazer was already exiting the

Cofields' property at the time the Cofields reached their front

door. See majority opinion at ----. This conclusion does not

account for the assistance Hancock had already provided through his

agreement to accompany the Belyeu Chevrolet employees to the

Cofield house. Without the security provided by Hancock's

presence, the Belyeu employees may not have been emboldened to

attempt the repossession.

Hancock claims that his assistance was solely for the purpose

of "keeping the peace," but that claim is contradicted by the

testimony of Evans, who solicited Hancock's aid. Evans testified

that he never told Hancock he was fearful of the Cofields, nor did

he indicate that he wanted Hancock's presence for security

purposes.

Moreover, even if Hancock had not yet assisted the

repossession when the Cofields opened their door, the Cofields

testified that Roy Cofield attempted to go after the Blazer as it
was being driven off. When he did so, Hancock informed Roy that if

he interfered with the repossession he would be arrested. A

reasonable fact finder could conclude from this evidence that

Hancock did not just "keep the peace," but in fact assisted with

the repossession.

If Hancock in fact participated in the repossession, his

actions violated clearly established law. "The right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated...."

Amendment 4, Constitution of the United States.

The Supreme Court clarified the purpose of the Amendment in

United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656,

80 L.Ed.2d 85 (1984):

This text protects two types of expectations, one involving

"searches," the other "seizures." A "search" occurs when an

expectation of privacy that society is prepared to consider

reasonable is infringed. A "seizure" of property occurs when

there is some meaningful interference with an individual's

possessory interests in that property.

The district court found Jacobsen inapplicable as it was a criminal

case dealing with the seizure of cocaine, and the Cofields' seizure

was a private taking of personal property. However, the Fourth

Amendment protects "the people," not exclusively "the criminally

charged."

The defendants argued that the application of the Fourth

Amendment to cases of this kind was not clearly established law

until confirmed by the Supreme Court's opinion in Soldal v. Cook

County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).

In Soldal, a landlord wished to remove a tenant's trailer from the

trailer park for failure to pay rent. The landlord did not wish to
wait for the necessary eviction papers, and asked the sheriff's

department to assist in a "self-help" eviction. The sheriff

accompanied the landlord to the park, and allowed the trailer to be

removed from the premises. The Court held that a "seizure" had

occurred within the meaning of the Fourth Amendment, remanding the

case to determine if the seizure was "reasonable."

It matters not that Soldal was decided after the seizure in

this case. We need not wait for the Supreme Court explicitly to

declare a law "clearly established" before finding its violation

unprotected by qualified immunity. Soldal did not claim to be

fashioning new law. To the contrary, the Court stated that its

holding fell within a long line of precedent, including Jacobsen,

466 U.S. 109, 104 S.Ct. 1652. While recognizing that a new

emphasis had been placed on the amendment's protection of privacy,

the Court stated "[t]here was no suggestion that this shift in

emphasis had snuffed out the previously recognized protection for

property under the Fourth Amendment." Soldal, 506 U.S. at 64, 113

S.Ct. at 545.

The majority seeks to distinguish Soldal because it involved

a "patently unlawful" eviction. See majority opin. at ----.

However, the comparative lawlessness of the two seizures is

elusive. In both cases, legitimate civil cause existed for the

seizures, but the requisite judicial process was lacking.

The availability of "self-help" repossession in the present

case is of no consequence. Belyeu's apparently friendly relations

with the sheriff permitted an "self-help" exercise to take on the

character of augmented self-help. The relevant law provides "In
taking possession [of collateral] a secured party may proceed

without judicial process if this can be done without breach of the

peace...." Ala.Code § 7-9-503 (1993) (emphasis added). Once the

presence of law enforcement officers is necessary, "self-help" no

longer applies and judicial process is required.

Assuming the Cofields' allegations are true, an issue for the

trier of fact to decide, Hancock's assistance in the repossession

of the Blazer violated clearly established Fourth Amendment law.

Hence, Hancock's actions are not, as a matter of law, protected by

qualified immunity.

I respectfully dissent.