Premature Eviction: Deputy Shouldn't Have Stripped Sexual Harasser Of His House, But QI Renders Lawsuit Impotent

REVIS v. MELDRUM, USCA-6 No. 06-5197, 06-5399, 2007 U.S.App. LEXIS 8951, on appeal from USDC-TNED, before USCJs Gilman, Sutton, USDJ-MIED Tarnow by designation, opinion by Gilman, filed 19 Apr 2007.

LONG STORY SHORT: Deputy's eviction of money judgment debtor from his house without postjudgment notice and hearing was unconstitutional, but the law was so unclear that no reasonable deputy could have known his conduct was unconstitutional, and qualified immunity saved him from liability. Binding in KY, MI, OH, TN.

FACTS: Harasser's former Employee sued him and his company for sexual harassment, winning $620,764.50 in damages, fees, and costs from them at trial. Harasser was personally liable for $462,964.50, and the judgment warned him that "execution may issue" while the case was on appeal, unless he posted an appeal bond. Three months before, Tennessee had changed its rules of civil procedure governing executions, abandoning most distinctions between executions on real and personal property, but required 20 days notice before selling any real property. Employee obtained a writ of execution against Harasser's house and another against all his personal property on the premises. Deputy Eaton received the writs, noted that they commanded him to take the listed property from Harasser, and asked the county attorney what to do, but did not specifically ask whether it was necessary to levy on Harasser's house. The county attorney advised him to obey the face of the writs.

Deputy Eaton arrived at Harasser's house just after dawn, served the writs on him, and stayed to keep order. A moving company, contracting with Employee's counsel, removed Harasser's personal property, including valuable artwork and furnishings. Another contractor changed the locks and did not give Harasser any keys. At 2200 that night, Deputy Eaton escorted Harasser off the premises, told Harasser he could not come back, and asked Harasser if he had any cash on him. Harasser produced $3 from his wallet, which Deputy Eaton did not take. A week later, Harasser posted an appeal bond and received all his property and house back.

PROCEDURE: Harasser sued Deputy Eaton, and private parties involved in the levy of his property, in U.S. District Court for the Eastern District of Tennessee per 42 U.S.C. § 1983 for violating his Fourth and Fourteenth Amendment rights against unreasonable seizure and deprivation of property without due process, on grounds that Deputy Eaton did not follow the proper Tennessee procedure. Deputy Eaton moved for summary judgment, arguing that he had not violated the Constitution, and if he had, then he was not on notice that his conduct was illegal. The private parties also moved for summary judgment, arguing that their private actions did not amount to state action.

The trial court ruled that Harasser got all the process that was due him in the trial itself, and upon judgment, Harasser should have known that all his property was fair game for writs of execution. Deputy Eaton's conduct was not illegal, and if it was, he still should have qualified immunity. Also, the private parties were not state actors upon these facts, and could not have violated the Constitution. SUMMARY JUDGMENT GRANTED; case closed. Upon the private parties' motion per 42 U.S.C. § 1988, the trial court also ruled that Harasser's suit against them was without foundation and vexatious. $65,183.61 ATTORNEY FEES AWARDED. Harasser appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: Qualified immunity requires a two-part analysis; first, whether Deputy Eaton's conduct violated the Constitution, and if so, whether a reasonable officer in his place would have known so at the time. Key to both questions was just what the judgment allowed Deputy Eaton to do, and although Harasser conceded that seizure of his personal property was not unconstitutional, he argued that the money judgment did not entitle a deputy to take possession of Harasser's house with only a writ of execution.

Ruling for the first time on this issue, the Sixth Circuit agreed with Harasser that all the judgment really said was that Harasser owed Employee some money. The judgment did NOT say that Employee now owned Harasser's house or could automatically throw Harasser out on the street. Judgment debtors have much stronger possessory interests in their homes than in their personal property or even wages, weighing against execution. Also, executing against a house might be useless if the judgment debtor has no equity in the house, or has tenants with valid leaseholds and their own due process rights. Many states, including Tennessee, have homestead protections, and execution on judgments should not be allowed to short-circuit them. Before erroneously depriving judgment debtors of their homes, even temporarily, the Sixth Circuit ruled that Fourteenth Amendment due process requires postjudgment notice and hearing.

It followed that Deputy Eaton, by allowing locks to be changed and forbidding Harasser to return, unreasonably seized Harasser's house. Deputy Eaton's actions thus violated the Fourth Amendment, but in doing so, he was following advice of counsel to carry out the plain language of the writs, which in turn conformed to Tennessee civil procedure rules. No clear federal caselaw prohibited his actions. No reasonable officer in his place would have known that he was about to violate the Constitution. Lastly, Deputy Eaton's verbal exchange with Harasser, resulting in Harasser showing $3 and being allowed to keep it, was only a question that Harasser need not have answered, and not a Fourth Amendment search. QUALIFIED IMMUNITY AFFIRMED.

The private parties were only doing what state statute and rule allowed them to. Notably, Harasser did not claim that Tennessee's procedures were unconstitutional; if he had argued and won that point, it might have been a different story. Neither did the private parties conspire with Deputy Eaton to deprive Harasser of any rights. SUMMARY JUDGMENT AFFIRMED, but since the Sixth Circuit had shown Harasser's arguments not to be obviously hopeless, and even despite the trial court's findings that Harasser had been too aggressive and multiplied his filings for purposes of harassment, ATTORNEY FEE AWARD VACATED and remanded for reconsideration.

EDITORIAL: This was not only the right result, but also a Nickelback case: for all the right reasons. Poor deputy, he was only doing what he really thought was right, and no good deed goes unpunished. Now we know, at least in the Sixth Circuit, we don't do it quite that way anymore.

This case wouldn't have happened if Mr. Harasser would have paid the judgment into the court registry, or done what his lawyer doubtless told him to do and get a supersedeas bond. Neither would it have happened if the Law Offices of Eager Beaver had just done an eviction procedure, which would have taken only another three weeks. I fully understand how much fun it is to collect on righteous judgments, especially for sexual harassment, but sometimes you just gotta hold your horses. Since they decided to go on and John Wayne it, and since the Sixth Circuit pointed out that Harasser's claims were not totally harebrained, they probably won't get their attorney fees back now. Expensive lesson!