Elizabeth Meyers; Millie Rovetta v. Redwood City, a municipal entity organized

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ELIZABETH MEYERS; MILLIE
ROVETTA,
Plaintiffs-Appellees,
v.
REDWOOD CITY, a municipal entity
organized and existing pursuant to
the laws of the State of California;
STEVE DOWDEN, individually and in No. 03-15872his capacity as a law enforcement
officer with the Redwood City D.C. No.
Police; CHRISTINE O’KEEFE, CV-02-01475-TEH
individually and in her capacity as OPINION
a law enforcement officer with the
Redwood City Police Department,
Defendants-Appellants,
and
TRI CITY RECOVERY; SAN MATEO
EMPLOYEES CREDIT UNION; STEVEN
A. BRUNO,
Defendants. 
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
June 18, 2004—San Francisco, California
Filed March 10, 2005
3157

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Before: Donald P. Lay,* Michael Daly Hawkins, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
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COUNSEL
Joseph C. Howard, Jr. and Todd H. Master, Redwood City,
California, for the petitioners-appellants.
Robert R. Powell and Douglas D. Durward, San Jose, Califor-
nia, for the respondents-appellees.
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OPINION
BYBEE, Circuit Judge:
Elizabeth Meyers and Millie Rovetta (collectively, “Plain-
tiffs”) brought suit under 42 U.S.C. § 1983 against police offi-
cers Steve Dowden and Christine O’Keefe and Redwood City
(collectively, “Defendants”) for violating their Fourth and
Fourteenth Amendment rights during a dispute over a vehicle
repossession. Plaintiffs allege that the Redwood City police
officers, acting under color of state law, unlawfully intervened
in a vehicle repossession and violated their constitutional
rights to due process and to be free from unreasonable
searches and seizures. This is an interlocutory appeal brought
by Defendants from a denial of a motion for summary judg-
ment based upon qualified immunity. Defendants claim that
they did not violate the Plaintiffs’ constitutional rights and, in
the alternative, that those rights were not clearly established
and Defendants have qualified immunity from suit. We con-
clude that Defendants did not violate the Plaintiffs’ constitu-
tional rights.
I. BACKGROUND
The California Commercial Code provides a right of repos-
session for secured creditors. Section 9609 states that “[a]fter
default, a secured party may . . . [t]ake possession of the col-
lateral . . . [w]ithout judicial process, if it proceeds without
breach of the peace.” CAL. COM. CODE § 9609(a)(1), (b)(2).
The California Business and Professional Code states that,
with respect to vehicles, “a repossession occurs when the
repossessor gains entry to the collateral.” CAL. BUS. & PROF.
CODE § 7507.12. However, police who aid a self-help
repossessor may be liable under Section 1983,
not only when there has been an actual “taking” of
property by a police officer, but also when the offi-
cer assists in effectuating a repossession over the
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objection of a debtor or so intimidates a debtor as to
cause him to refrain from exercising his legal right
to resist a repossession. While mere acquiescence by
the police to “stand by in case of trouble” is insuffi-
cient to convert a repossession into state action,
police intervention and aid in the repossession does
constitute state action.
Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir.
1981).
Plaintiff Meyers financed a Lexus through the San Mateo
County Employees Credit Union (“Credit Union”). When she
became delinquent in those payments, the Credit Union hired
Tri-City Recovery (“Tri-City”) to repossess Meyers’s vehicle.
Tri-City in turn hired Steve Bruno to effect the actual repos-
session. On April 19, 2001, at three o’clock in the morning,
Bruno knocked on the front door and demanded the keys to
Meyers’s car. Meyers attempted to explain that there was
already a valid arrangement for payment, but Bruno informed
her of his right to take the car and continued to demand the
keys to the vehicle. A heated argument ensued, as Meyers
informed Bruno that he was trespassing and asked him to hold
off repossession for a few hours until she could call her insur-
ance company and the Credit Union to resolve the problem.
Bruno refused this request and continued to demand the keys
and insist that he was taking the car.
Bruno left the doorstep and proceeded to circle the car, pre-
sumably looking for a way into the vehicle. Meyers grabbed
her keys and headed towards the car to drive away. Meyers
alleges that, at that point, a scuffle occurred in which Bruno
lunged at her, grabbing her by her waist and injuring surgical
scars from her recent caesarian section as he lifted her off her
feet. After Bruno released Meyers, Meyers circled the Lexus
in an attempt to open and lock the car door before Bruno
could make it to the door. Meyers opened the car with her
remote control and managed to get into the driver’s seat.
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Before she could close the door, however, Bruno blocked her
efforts to close the door, so that Meyers was halfway in the
driver’s seat. Bruno allegedly attacked her, trying to remove
her forcefully from the car by pulling at her arms, thigh, and
head. Meyers’s mother, Rovetta, then ran up behind Bruno to
grab his belt and pull him off her daughter. Bruno stomped on
Rovetta’s foot and threw her into the nearby bushes, and
Rovetta grabbed Bruno around the neck.
During this melee, Meyers started the car and backed it part
way down the driveway before catching the open door on a
bush. Bruno yelled to his companion to block the Lexus in the
driveway with another vehicle at the scene. Meyers screamed
for her father to get his shotgun, at which point Bruno called
911. Officer O’Keefe and six other unnamed officers
appeared shortly and separated Bruno from the Plaintiffs.
Officer O’Keefe interviewed both parties to ascertain what
had occurred. Plaintiffs exhibited their injuries and explained
their version of the events. Bruno showed the police his iden-
tification and informed them that he was hired to repossess
Meyers’s car and had already gained entry into the car. He
told them that he had used a slim jim tool to gain access to
the Lexus, and that after he had entered the vehicle he had
approached Meyers’s house to ask her to remove her property
from inside the Lexus. He told police that Plaintiffs physically
attacked him, and the officers noted that both his chest and
arms were scratched and bleeding. Both Meyers and Bruno
showed the officers paperwork purporting to establish their
right to the car.
At some point Bruno told the officers that he wanted to
effect a citizen’s arrest against Plaintiffs for assaulting him.
Plaintiffs informed the officers that they, too, wished to effect
a citizen’s arrest against Bruno for assault and trespass. Offi-
cer O’Keefe satisfied herself that Bruno had been authorized
to repossess the vehicle and asked Bruno something to the
effect of, “Is there any way we can resolve this situation
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peacefully?” Bruno stated that he would not press charges if
Plaintiffs would let him take the vehicle away. According to
the complaint, Officer O’Keefe went to the Plaintiffs and told
them “It looks like this is what we are going to do here, either
you are going to let [Bruno] take the car, or we are going to
arrest you.” Plaintiffs allege that they were “incredulous” and
insisted on speaking to a police sergeant. Officer Dowden was
summoned. After being apprised of the situation, Dowden
relayed to Plaintiffs that giving the car to Bruno was their
only option to avoid arrest. Plaintiffs, feeling they had no
choice, agreed to let Bruno take the car.
Meyers and Rovetta brought suit against Redwood City,
Officers Dowden and O’Keefe, Tri-City, Bruno, and the
Credit Union for violation of their constitutional rights and for
state tort claims for battery, infliction of emotional distress,
false imprisonment, and trespass. Meyers and Rovetta later
stipulated to dismiss the § 1983 claims against Tri-City,
Bruno, and the Credit Union. The municipal Defendants filed
a motion for summary judgment, arguing that Plaintiffs had
not shown that Defendants violated their constitutional rights,
and that even if there was a constitutional violation, Defen-
dants were entitled to qualified immunity.
The district court denied the Defendants’ motion. The court
began with the observation that California permits “self-help”
repossession “but only if the repossession ‘proceeds without
breach of the peace.’ ” (quoting CAL. COM. CODE
§ 9609(b)(2)). The district court found that there were “sub-
stantial material disputes of fact as to what occurred” before
and after the officers arrived but that, viewing the disputed
facts in the light most favorable to the Plaintiffs, there was a
breach of the peace and Bruno had no right to repossess the
car. Relying on our decision in Harris, the district court held
that “[w]hile the police may simply ‘stand by’ in case of trou-
ble, they cannot intervene and aid in the repossession, since
doing so converts the possession into ‘state action,’ and the
state may not repossess a debtor’s property without affording
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due process.” (citations omitted). The court found that Plain-
tiffs presented evidence that, if believed by a jury, the officers
“took sides in the repossession dispute after improperly con-
cluding that the repossession was valid notwithstanding the
breach of peace.” According to the court, the officers misused
their authority by intervening to assist Bruno or by intimidat-
ing Meyers so that she refrained from resisting the unlawful
repossession. The court also found that the law governing
repossession of cars was well established to defeat Defen-
dants’ claim of qualified immunity. The district court denied
Defendants’ motion for summary judgment on the grounds
that there was evidence of a constitutional violation and that
Plaintiffs’ constitutional rights were so clearly established by
Harris that the Defendants were not entitled to qualified
immunity.
II. DISCUSSION
There are two questions presented by the Defendants’
motion for summary judgment in this § 1983 case. Both are
questions of law. The first is whether their actions violated the
Plaintiffs’ constitutional rights. We must consider whether,
“[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show the officer’s conduct vio-
lated a constitutional right.” Saucier v. Katz, 533 U.S. 194,
201 (2001). “If no constitutional right would have been vio-
lated were the allegations established, there is no necessity for
further inquiries concerning qualified immunity.” Id.
The second question is, assuming Defendants’ actions vio-
lated the Plaintiffs’ constitutional rights, whether those rights
were so “clearly established,” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982), that “in the light of pre-existing law the
unlawfulness [of the challenged action was] apparent,” Ander-
son v. Creighton, 483 U.S. 635, 640 (1987), and the officers
should answer in tort. The officers are immune unless “the
law clearly proscribed the actions” taken. Mitchell v. Forsyth,
472 U.S. 511, 528 (1985). Accordingly, qualified immunity
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protects those officials “who are required to exercise their dis-
cretion,” Butz v. Economou, 438 U.S. 478, 506 (1978), and
who “routinely make close decisions in the exercise of the
broad authority that necessarily is delegated to them.” Davis
v. Scherer, 468 U.S. 183, 196 (1984).
Where the constitutional question is a close one, we might
prefer to turn to the second, and easier question, whether the
officers violated a clearly established constitutional right. The
Supreme Court in Saucier, however, made clear that we must
determine whether a constitutional right was violated first “to
set forth principles which will become the basis for a holding
that a right is clearly established.” Saucier, 533 U.S. at 201.
Otherwise, “[t]he law might be deprived of this explanation
were a court simply to skip ahead to the question whether the
law clearly established that the officer’s conduct was unlawful
in the circumstances of the case.” Id. at 201. See Hell’s Angels
Motorcycle Corp. v. McKinley, 360 F.3d 930, 933 (9th Cir.
2004). See also Brosseau v. Haugen, 125 S. Ct. 596, 598-99
(2004) (per curiam). We are bound by the Court’s decision in
Saucier and our own subsequent decision in Hell’s Angels to
decide the constitutional question first and then address quali-
fied immunity. Although we conclude that the Defendants did
not violate the constitutional rights of the Plaintiffs, given the
complexity of the question, we will address the easier ques-
tion of qualified immunity as well. See Brosseau, 125 S. Ct.
at 598 (“express[ing] no view as to the correctness of the
Court of Appeals’ decision on the constitutional question” but
finding officer entitled to qualified immunity).
A
[1] Plaintiffs allege that the Defendants violated their con-
stitutional rights under the Fourth and Fourteenth Amend-
ments. In order to prevail on their due process claim, the
Plaintiffs must demonstrate that the Defendants, while acting
under color of state law, deprived Plaintiffs of their property
without due process of law. U.S. CONST. amend. XIV, § 1. See
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Fuentes v. Shevin, 407 U.S. 67, 80 (1972). In order to prevail
on their search and seizure claim, the Plaintiffs must demon-
strate that the Defendants, while acting under color of state
law, unreasonably seized the Plaintiffs’ “persons, houses,
papers [or] effects.” U.S. CONST. amends. IV; XIV, § 1. See
Soldal v. Cook County, 506 U.S. 56, 61-62 (1992).
[2] In the circumstances of this case, the Fourth and Four-
teenth Amendment inquiries are, for all relevant purposes, the
same. The critical question in this case is whether the officers,
who were plainly acting under color of state law, unlawfully
facilitated Bruno’s efforts to repossess Meyers’s Lexus,
thereby unreasonably seizing her car or depriving her of prop-
erty without due process of law. Indeed, for purpose of this
decision only, we may assume that Meyers suffered both the
deprivation of her car without due process of law and the
unreasonable seizure of her car. However, on this record, we
conclude that the officers were not so enmeshed in effectuat-
ing the repossession that the deprivation and seizure of Mey-
ers’s car is attributable to the state.
The “state action” doctrine in repossession and other self-
help remedies has been a complicated area of the law. Many
of the cases have focused on whether or at what point a pri-
vate party employing a self-help remedy has assumed the
mantle of the state and can be held to answer under Section
1983 for violating the debtor’s constitutional rights. See, e.g.,
Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) (by obtain-
ing writ of prejudgment attachment, oil company was state
actor; company was answerable under § 1983); Flagg Bros. v.
Brooks, 436 U.S. 149 (1978) (creditor’s repossession was not
state action; creditor not subject to suit under § 1983); Adams,
492 F.2d at 329.
[3] This case presents the flip side to those cases: 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? See, e.g., Soldal, 506 U.S. at 60-61 n.6 (declining to
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review lower court conclusion that police participation consti-
tuted state action); Howerton v. Gabica, 708 F.2d 380, 383-84
(9th Cir. 1983) (finding state action where police were present
at each step of the eviction from a trailer and recommended
that the owners leave the trailer); Harris, 664 F.2d at 1127
(finding state action where police participated in semi-tractor
repossession). But see United States v. Coleman, 628 F.2d
961, 964 (6th Cir. 1980) (finding that “mere acquiescence by
the police to ‘stand by in case of trouble’ was insufficient to
convert the repossession of the truck into state action.”);
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 512-13
(5th Cir. 1980) (finding that plaintiffs did not provide evi-
dence of police officers acting in concert with defendants dur-
ing a repossession to deprive plaintiffs of constitutional
rights).
[4] Our principal case is Harris. Harris had purchased a
semi-tractor from Cantwell, who retained a security interest in
the tractor. When Harris fell behind on his payments, Cant-
well decided to repossess the tractor. Cantwell alerted the
Roseburg City (Oregon) police that he intended to repossess
the tractor and that he feared violence, and asked the police
to “stand by” during the repossession. As Cantwell had
feared, Harris confronted him. One of the police officers then
stepped between them and ordered Harris to stand back
because Cantwell was there to repossess the truck. Harris,
664 F.2d at 1124. We held that the officers did not have to
physically take possession of Harris’s property to deprive him
of it. It was enough that “the officer assists in effectuating a
repossession over the objection of a debtor.” Id. at 1127.
Accordingly, although “mere acquiescence by the police to
‘stand by in case of trouble’ is insufficient to convert a repos-
session into state action, police intervention and aid in the
repossession does constitute state action.” Id. See also Marcus
v. McCollum, 394 F.3d 813, 818-819 (10th Cir. 2004) (col-
lecting cases).
[5] The melee in Meyer’s driveway was not conducted
under the purview of the officers. Unlike in Harris, Officers
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Dowden and O’Keefe were not alerted in advance to the
repossession and asked to “stand by” to ensure that the repos-
session went smoothly. In Harris, Cantwell secured the pres-
ence of the officers precisely to guarantee that Harris did not
protest the repossession and, thus, that the repossession could
proceed without breach of the peace. Harris, 664 F.2d at
1124. When Harris protested the repossession, the officers
intervened on behalf of Cantwell. The officers’ presence was
integral to the repossession, and they were active participants
in it.
[6] By contrast, Officers Dowden and O’Keefe were sum-
moned to a scene not of their making. Clearly, a “breach of
the peace” within the meaning of Section 9609 was in prog-
ress. The officers then heard conflicting stories about whether
Bruno had taken effective possession of the car prior to the
breach. The officers were caught between two sections of the
California Code, one which says that a repossessor may take
the collateral if he can do so without breaching the peace,
CAL. COM. CODE § 9609(b)(2), and a second which says that
the repossession is complete when the repossessor gets access
to the car, CAL. BUS. & PROF. CODE § 7507.12. Even if the
officers understood how those two sections are supposed to
work together, the officers had little means for resolving the
dispute over possession of the car at the scene.1
[7] At that point, both Bruno and Meyers insisted on mak-
ing a citizen’s arrest of the other. Under the California code,
private persons may arrest another for offenses committed or
attempted in their presence. CAL. PENAL CODE § 837. “A pri-
vate person who has arrested another for the commission of
a public offense must, without unnecessary delay, . . . deliver
1We have no occasion here to decide whether, under California law, one
who gets access to a vehicle (making repossession complete under
§ 7507.12) is barred from taking it (under § 9609(b)(2)) if a breach of the
peace occurs after the repossession but before the repossessor can remove
the vehicle from the property.
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him or her to a peace officer.” CAL. PENAL CODE § 847(a). A
private person making a citizen’s arrest need not physically
take the suspect into custody, but may delegate that responsi-
bility to an officer, and the act of arrest “may be implied from
the citizen’s act of summoning an officer, reporting the
offense, and pointing out the suspect.” Padilla v. Meese, 184
Cal. App. 3d 1022, 1030-31 (1986). California law gives the
officer the choice of making the citizen’s arrest or not, but
there are powerful incentives to make the arrest. On the one
hand, an officer who makes an arrest pursuant to a citizen’s
complaint is not subject to liability for false arrest or false
imprisonment. CAL. PENAL CODE § 847(b)(3). On the other
hand, an officer does not have to effect the arrest if he or she
“is satisfied that there are insufficient grounds for making a
criminal complaint[.]” CAL. PENAL CODE § 849(b)(1). How-
ever, there is a catch: If it turns out that there were grounds
for the complaint and the officer failed to take the suspect into
custody, the officer is subject to fines or imprisonment. CAL.
PENAL CODE § 142(a).2 The California courts have held that
even though an officer may decline to take a suspect into cus-
tody under Section 849 if he finds no grounds for the com-
plaint, an officer cannot be sued civilly if he makes the arrest
and, it turns out, there were no grounds for the citizen’s arrest.
Kinney v. County of Contra Costa, 8 Cal. App. 3d 761, 768-
69 (Cal. Ct. App. 1970); Shakespeare v. City of Pasadena,
230 Cal. App. 2d 375, 382 (Cal. Ct. App. 1964). Noting the
conundrum in the law, California courts have held that the
law does not compel officers to choose between civil liability
for false arrest and criminal liability for failing to make an
arrest, and that officers may choose the safe course and sim-
ply make the citizen’s arrest:
2“Any peace officer who has the authority to receive or arrest a person
charged with a criminal offense and willfully refuses to receive or arrest
that person shall be punished by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the state prison, or in a county jail not
exceeding one year, or by both that fine and imprisonment.” CAL. PENAL
CODE § 142(a).
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[W]e are presented with no authority, and we find
none, holding that a peace officer, required to take
custody of a person arrested by a private citizen,
must at his peril correctly adjudge whether the citi-
zen had probable cause. The means of information
would ordinarily be scant and any error on the offi-
cer’s part would be costly; should he incorrectly find
no probable cause and refuse custody he would face
criminal sanctions, while a faulty contrary decision
would subject him to civil liability to the person
arrested.
Kinney, 8 Cal. App. 3d at 768-69 (citations omitted). See also
Arpin, 261 F.3d at 920-21.
[8] Once Bruno told the officers he wanted to press
charges, the officers could decline to arrest Meyers only if
they determined that there was “no ground” for the arrest, but
the risk of error for failure to arrest her was criminal fines and
imprisonment. Having seen the blood from the scratches on
Bruno’s chest and arms, the officers were bound to take Mey-
ers in on Bruno’s citizen’s arrest. By the same token, when
Meyers told the officers that she too wished to press charges,
the officers were equally bound to arrest Bruno.
When the officers asked “Is there any way we can resolve
this situation peacefully?” they were trying to extricate two
citizens out of a mutually difficult situation, one that was
likely to result in both of them being arrested. The officers
simply presented to Meyers her options: she could assert her
rights to the car, and Bruno would press charges and the offi-
cers would have to arrest her. Or, she could avoid arrest and
fight Bruno and the Credit Union another day. She could, of
course, have pressed her own charges against Bruno, but if he
was going to the station, she was likely going with him.
[9] This looks like a no-win situation for Meyers, but it was
Bruno, not the officers, who ultimately created the Hobson’s
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choice: He would not effect his citizen’s arrest if Meyers
would let him take the car. Meyers had to make a choice
between suffering arrest (and perhaps leaving her baby), or
giving up the car until the following day when she could get
everything straightened out with the Credit Union. Forcing
Meyers to choose between her liberty or her property was not
a situation of the officers’ creation but a consequence of a
nasty confrontation. Bruno simply took advantage of the situ-
ation and California law. Had the officers declined to present
the choice to Meyers, Meyers could have kept her car, but
both she and Bruno would likely have ended up at the police
station. Presenting Meyers with such a choice — albeit a
choice between two unpleasant consequences — does not vio-
late her Due Process or Fourth Amendment rights.
[10] We thus disagree with the district court that the ques-
tion was whether the officers reasonably believed that Bruno
had effected repossession and was entitled to take the car. The
officers could have reasonably believed that Bruno had a col-
orable claim to the car and, without resolving whether Bruno
was entitled in law and fact to repossess the car, determined
that they had to present the options to Meyers and Rovetta. In
this situation, it is Bruno, not the officers, who risks suit for
either wrongful repossession or false arrest. Even if the offi-
cers mistakenly thought that Bruno had gained access to the
car and was entitled to repossess it, their presenting the choice
to Meyers did not violate her Fourth and Fourteenth Amend-
ment rights.
B
[11] Even if we thought that the officers crossed a line
established by Harris, the officers are surely entitled to quali-
fied immunity because they could not have known that they
were violating the Plaintiffs’ “clearly established” constitu-
tional rights. Harlow, 457 U.S. at 818. Even with a copy of
Harris in their back pockets, the officers could not have deter-
mined at what point in the middle of this messy repossession
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they deprived Meyers of her property without due process of
law. Meyers may have every right to be unhappy with the sit-
uation, but the officers cannot be faulted for attempting to set-
tle this late-night confrontation peacefully. In these
circumstances, it would not “be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202.
III. CONCLUSION
Officers Dowden and O’Keefe did not violate Plaintiffs’
constitutional rights when they reasonably acted to restore
order during a tense and difficult situation. The district court
erred in denying summary judgment on this issue. In any
event, the officers are entitled to qualified immunity for their
actions. The district court’s decision is reversed and the case
is remanded for further proceedings consistent with this judg-
ment.
REVERSED.
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