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Booker v. City of Atlanta

United States Court of Appeals, Eleventh Circuit
Jan 9, 1986
776 F.2d 272 (11th Cir. 1986)

Summary

holding summary judgment improper on state action issue where even though officer did not actively assist with repossession jury could find that officer's "arrival with the repossessor gave the repossession a cachet of legality and had the effect of intimidating Booker into not exercising his right to resist, thus facilitating the repossession"

Summary of this case from Morozov v. Howard Cnty.

Opinion

No. 85-8070.

November 15, 1985. Rehearing and Rehearing En Banc Denied January 9, 1986.

Clifford H. Hardwick, Atlanta, Ga., for plaintiff-appellant.

Marva Jones Brooks, Malcolm J. Hall, George R. Ference, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and HENDERSON, Circuit Judges, and DYER, Senior Circuit Judge.


Two trucks in the possession of plaintiff Joseph Booker were repossessed while F.M. Couvillion, an Atlanta police officer who had accompanied Booker to the scene, stood by to keep the peace. Claiming that the repossession was wrongful, and that Couvillion's involvement amounted to a violation of procedural due process, Booker filed suit against Couvillion and the City of Atlanta under the fourteenth amendment and 42 U.S.C. § 1983. The district court granted defendants' motions for summary judgment. We reverse with respect to the city.

Either of two barriers could prevent Booker from recovering against the city. First, if Officer Couvillion's involvement at the repossession was nothing more than mere presence to prevent a breach of the peace, neither we nor the district court would have jurisdiction over this case. The requisite state action would be lacking See Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). Second, if Couvillion's actions were not taken pursuant to official city policy, practice, or custom, the city is immune from both an action brought under 42 U.S.C. § 1983, Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), and a Bivens action based directly upon the fourteenth amendment, Dean v. Gladney, 621 F.2d 1331, 1334-37 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981).

Although either of these barriers might eventually prove fatal to Booker's claim, we conclude that summary judgment at this point is improper. Couvillion's involvement in the repossession at issue here was more extensive than that of the officers in Menchaca. In that case, the officers arrived at the scene and became involved only after a breach of the peace was threatened. Here, by contrast, Couvillion arrived with the repossessor. Even if a jury were to find that Couvillion did not actively assist with the repossession, it nevertheless could find that Couvillion's arrival with the repossessor gave the repossession a cachet of legality and had the effect of intimidating Booker 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. See Menchaca, 613 F.2d at 513; Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919, 923 (11th Cir.) (state action may exist where government affirmatively facilitates or encourages private action), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982).

Liability of the city, of course, could not be based on a finding of active assistance by Couvillion that was contrary to city policy.

A jury might also find that Officer Couvillion's actions were in line with the city's usual practice in repossession cases. Although it is clear that the city's stated policy is to stay neutral in civil cases, including repossessions, its intention to remain neutral would not insulate the city from liability if its actual practice, even if well-intentioned, facilitates repossessions.

Summary judgment in favor of Couvillion, on the other hand, is justified. If Couvillion's actions were within the scope of his official duties, he is immune from suit if he acted under a good faith belief that the actions were legal. See Clark v. Beville, 730 F.2d 739 (11th Cir. 1984); Sellers v. United States, 709 F.2d 1469 (11th Cir. 1983). Couvillion properly alleged good faith in his answer and Booker has offered no evidence to rebut this claim.

The district court's entry of summary judgment in favor of the City of Atlanta is REVERSED; the entry of summary judgment in favor of defendant Couvillion is AFFIRMED.


Summaries of

Booker v. City of Atlanta

United States Court of Appeals, Eleventh Circuit
Jan 9, 1986
776 F.2d 272 (11th Cir. 1986)

holding summary judgment improper on state action issue where even though officer did not actively assist with repossession jury could find that officer's "arrival with the repossessor gave the repossession a cachet of legality and had the effect of intimidating Booker into not exercising his right to resist, thus facilitating the repossession"

Summary of this case from Morozov v. Howard Cnty.

finding fact question precluding summary judgment

Summary of this case from Rand v. Porsche Financial Services

concluding summary judgment was improper because a jury "could find that [the 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"

Summary of this case from Price-Cornelison v. Brooks

affording qualified immunity for summary judgment purposes where officer alleged good faith belief in the legality of his actions, even though he arrived with the repossessor, which intimidated the plaintiff and gave the repossession the "cachet of legality"

Summary of this case from Marcus v. McCollum

considering plaintiff's subjective view, stating officer's arrival with the repossessor gave situation a "cachet of legality" establishing state action

Summary of this case from Marcus v. McCollum

In Booker the Eleventh Circuit concluded that summary judgment was not warranted because a jury could find that although the officer did not actively assist with the repossession, his "arrival with the repossessor gave the repossession the cachet of legality and had the effect of intimidating [the plaintiff] into not exercising his right to resist, thus facilitating the repossession."

Summary of this case from Middaugh v. City of Three Rivers

In Booker, an Atlanta police officer accompanied the repossessor of two trucks in the possession of the plaintiff, Joseph Booker, to the scene of the repossession.

Summary of this case from White v. Bibb County, Georgia
Case details for

Booker v. City of Atlanta

Case Details

Full title:JOSEPH C. BOOKER, D/B/A BOOKER TRUCKING COMPANY, PLAINTIFF-APPELLANT, v…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Jan 9, 1986

Citations

776 F.2d 272 (11th Cir. 1986)

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