Opinion
Civil Action No. 3:99CV-719-S.
December 15, 2000.
MEMORANDUM OPINION
This matter is before the Court on the Defendants' motion for summary judgment. For the reasons described below, we will deny this motion by separate order entered this date.
FACTS
This case arises out of actions taken by the Defendants, officers on the City of Louisville Police Department, to remove the Plaintiffs from the Augusta House, a "transitional shelter" for women operated by Mission House, Inc., located in Louisville. The following facts are undisputed for the purposes of this motion unless otherwise noted.
The Plaintiffs, Natasha Thomas ("Thomas"), Susan Gibbs ("Gibbs"), and Edwina Lewis ("Lewis"), were residents of the Augusta House in the fall of 1998. Augusta House was a shelter for women attempting to acclimate themselves into mainstream society. A dispute arose between the Plaintiffs and the Director of the Augusta House, Laura Zinious ("Zinious"). Zinious took steps to have the Plaintiffs removed from the house.
While the dispute was brewing, the Plaintiffs met with an attorney at the Legal Aid Society, Linda Roberts, who informed them that, in her legal opinion, they were "tenants" of the Augusta House and could not be removed unless Zinious followed Kentucky's statutory eviction ("forcible detainer") procedures. She wrote a letter to Zinious stating this opinion. The Plaintiffs obtained a similar letter from the Louisville Tenants Association ("LTA"), a tenant advocacy group.
On Monday, December 7, 1998, Officer Larry Cushman ("Cushman") was called to the scene by an Augusta House maintenance man and prepared to remove the Plaintiffs from the house. Based upon information supplied to him by the Plaintiffs, including the letter from the LTA, Officer Cushman declined to remove the Plaintiffs from the house unless the Augusta House proceeded with a civil forcible detainer action. Officer Cushman is not a party to this action.
The next morning, Zinious called the police again to have the Plaintiffs removed. The Defendants, Officer Ann Cohen, Officer Glenn Craig, Officer James Embry, and Officer Susan Harbour, were called to the scene to handle the situation.
The facts at this stage are murkier. The Plaintiffs state that the Defendants entered their rooms and announced that they would have to leave the premises. The Plaintiffs allege that they informed the Defendants that they paid monthly rent to the Augusta House and showed or offered to show them the letter from LTA. Nevertheless, it is undisputed that the Defendants eventually caused the Plaintiffs to leave Augusta House. No court order had been sought or obtained.
The Plaintiffs have filed suit against the Defendants in their individual capacities under 42 U.S.C. § 1983. The Plaintiffs allege that the Defendants violated their Fourth Amendment right to be secure in their property against unreasonable seizures, their Fourteenth Amendment right to procedural due process before being deprived of property, and their rights under Kentucky law which mirror these federal rights.
The Defendants now move for summary judgment. First, they argue that the Defendants did not violate the Constitutional rights of the Plaintiffs. Second, they argue that even if Constitutional rights were violated, they are entitled to qualified immunity because the rights were not so clearly established that a reasonable officer would understand that his or her actions violate that right. We address these arguments in turn.
DISCUSSION
Summary judgment may be granted only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We must consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," in the light most favorable to the Plaintiffs. Id.; Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Plaintiffs may not rely on their pleadings alone, but must demonstrate the existence of a genuine dispute by pointing to specific facts. Id. at 586-87, 106 S.Ct. at 1356. Also, we may not weigh evidence or make determinations of credibity. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
Section 1983 is violated if a plaintiff is deprived, under color of state law, of any right secured by the Constitution. However, qualified immunity may protect against liability for such a claim unless the Plaintiffs can establish that a two part test is satisfied. First, the Plaintiffs must show that the Defendants deprived them of a right protected by the Constitution. Second, this right must be so clearly established that a reasonable officer would understand that his or her actions would violate that right. Cooper v. Parrish, 203 F.3d 937, 951 (6th Cir. 2000).
1. § 1983
In order to violate section 1983, a police officer must deprive a plaintiff of a right secured by the laws or Constitution of the United States. In this case, the Plaintiffs allege that two of their Constitutional rights were violated: (1) their Fourth Amendment right to be secure in their property against unreasonable seizures and (2) their Fourteenth Amendment right to procedural due process before being deprived of property. For purposes of this motion, the Defendants assume, arguendo, that the Plaintiffs were "tenants" of the Augusta House as that term is used in Kentucky law. See K.R.S. § 383.545(15). Our analysis here is consonant with this assumption. We note this only to make clear that the Defendants do not concede the point and that they will contest the Plaintiffs' status as tenants at trial.
A.Fourth Amendment
The Plaintiffs allege that by dispossessing them of their right to occupy their rooms at the Augusta House, the Defendants seized their property. They contend that for a variety of reasons the seizure was unreasonable. In their motion, the Defendants argue that no seizure occurred, only a "garden variety landlord-tenant dispute" which resulted in the Plaintiffs' being thrown out. They also argue that even if a seizure did occur, they did not act in an unreasonable manner.
i. Seizure
If the Plaintiffs were tenants, which is assumed arguendo, it is clear they were evicted from their tenement with the active assistance of the Defendants. A seizure occurs when "there is some meaningful interference with an individual's possessory interests in . . . property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). The "core" of the Fourth Amendment is "the right of a man to retreat into his own home." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961). This protection applies in civil contexts as well as criminal. Soldal v. Cook County, Illinois, 506 U.S. 56, 67, 113 S.Ct. 538, 546, 121 L.Ed.2d 450 (1992). Thus, it follows that when the police escort a person from the place where she lives, a seizure is effected within the meaning of the Fourth Amendment. There is no reason to believe that the result should be different simply because the property right is only possessory, as in the case of a tenant, rather than full ownership. Recognizing this fact, a unanimous Supreme Court stated that the Fourth Amendment applies when a house is taken in order to "effect an eviction by the police." Id., at 69, 113 S.Ct. at 548. Under the facts and assumptions presented here, we find that Fourth Amendment seizure has been sufficiently shown to withstand summary judgment.
ii. Reasonableness
Of course, Soldal recognized that most evictions and repossessions do not constitute a violation of the Fourth Amendment. Id. at 71, 113 S.Ct. at 549. This is because "`reasonableness is still the ultimate standard' under the Fourth Amendment." Id. (quoting Camera v. Municipal Court of San Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967)). When police officers evict someone pursuant to a court order, it would be a "laborious task" to show that their actions are unreasonable, and the police will seldom "proceed to seize property in the absence of objectively reasonable grounds for doing so." Id. at 71-72, 113 S.Ct. at 549.
Because the lower courts had not addressed the issue of reasonableness, Soldal remanded the case without addressing that issue. Id.
In this case, however, the Defendants did not act pursuant to a court order. There is no allegation that the Plaintiffs were engaged at the time in criminal activity or that there were other circumstances present which would have required immediate action on their part.
The reasonableness determination should reflect a "careful balancing of governmental and private interest." New Jersey v. T.L.O. 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). The private interest of retaining possessory rights over one's home is great. The government's interest in removing tenants from their homes when there is no court order or exigent circumstance is minimal at best. Thus, assuming for the purposes of this motion that the Plaintiffs were tenants within the meaning of Kentucky law, there is a sufficient showing that the seizure alleged in this case was unreasonable under Fourth Amendment standards.
B. Fourteenth Amendment
The Fourteenth Amendment provides that no State shall "deprive any person of . . . property without due process of law; . . . ." The Plaintiffs allege that by removing them from the Augusta House before they were afforded an opportunity to be heard in a forcible detainer action, the Defendants deprived them of their property rights without due process.
The Defendants argue that they are entitled to summary judgment on this charge for four reasons. First, they contend that they are not covered by, and thus, are not capable of violating Kentucky's Uniform Residential Landlord and Tenant Act, K.R.S. §§ 383.500, et seq, ("URLRA"). However, the Plaintiffs do not claim that they violated URLTA. Instead they claim that the Defendants unreasonably seized their property without affording them the process due.
Second, the Defendants argue that a violation of URLTA cannot support a claim under section 1983. Again, it is not claimed that the Defendants violated the Plaintiffs' rights under Kentucky law but under the Constitution. Kentucky law is only relevant in determining the process which is due.
Third, the Defendants contend that this case should be limited to a Fourth Amendment analysis. This contention is unavailing in light of the fact that the due process violation alleged in procedural, not substantive.
Fourth, they argue that because Kentucky law provides adequate post-deprivation hearings, there can be no due process violation. Their argument is premised upon the holding in Reese v. Kennedy, 865 F.2d 186 (8th Cir. 1989), a case with a similar facts. However, we find this case unpersuasive for several reasons. First, the case was decided before Soldal and Flatford v. City of Monroe, 17 F.3d 162 (6th Cir. 1994) (holding that lack of pre-deprivation hearing violated tenants' due process rights), two cases which undercut its foundations. Second, Reese is not binding upon us, and even if it were, we would agree with Flatford, that a post-deprivation hearing is insufficient to satisfy due process in facts such as those presented here. Finally, we note that Kentucky provides for a pre-deprivation hearing, and so we are not convinced that one is "impracticable." See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981).
2. QUALIFIED IMMUNITY
Police officers enjoy a qualified immunity from suit in federal courts. They can only be held liable if a plaintiff can satisfy a two step test. First, the plaintiff must allege the deprivation of a constitutionally protected right. Cooper v. Parrish, 203 F.3d 937, 951 (2000). We have already determined that the Plaintiffs have alleged a deprivation of two constitutional rights. Second, they must show that the constitutional right is so "clearly established" that a reasonable officer would understand that what he is doing violates the law. Id. The question, then, is "whether the agents acted reasonably under settled law in the circumstances . . . ." Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). The question of immunity is typically one for the court to decide rather than the jury. Id.
The provisions and cases that we have relied upon indicate that the law was not unclear or unsettled at the time of the events in question. Soldal, a unanimous decision, was decided in 1992 and relied upon well-settled rules of law. Likewise, Kentucky law on forcible detainers is well-established. Thus, a reasonable officer knows that the Constitution prohibits him from seizing property unreasonably or without procedural due process. He would then be aware of the fact that he could not evict a tenant from her home except under exigent circumstances or pursuant to a court order and the fact that he was not in a position to make the determination of whether she qualified as a tenant. The Plaintiffs present sufficient evidence to create a genuine dispute as to whether the Defendants acted unreasonably in violation of these understandings. Therefore, we find that the Defendants are not entitled to summary judgment on the issue of qualified immunity.
2. Kentucky Constitutional Claims
The parties agree that the Plaintiffs' claims under the Kentucky Constitution parallel the federal claims already addressed. Thus, our determination of the federal claims should control our ruling on these claims. Therefore, we find that there is a genuine issue of material fact such that the Defendants are not entitled to summary judgment.
CONCLUSION
The Defendants have failed to demonstrate that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. Therefore, their motion for summary judgment will be denied by separate order entered this date.