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!

Child Abuse Investigators Deliberately Violate Constitution, End Cop's Career, And Get Away With It

BOYD v. OWEN, USCA-7 No. 05-3587, 2007 U.S.App. LEXIS 6603, on appeal from USDC-ILSD, before USCJs Cudahy, Manion, Rovner, opinion by Rovner, filed 22 Mar 2007.

LONG STORY SHORT: Child welfare investigators falsely and recklessly accused a police officer of child abuse, which cost him a career in law enforcement and violated his Fourteenth Amendment due process rights, but since that right was not clearly established at the time, the investigators were not legally liable. Binding in IL, IN, WI.

FACTS: Danny Knight, a friend of Mother, claimed that Plaintiff, an officer with Washington Park, IL PD, had beaten and bruised the buttocks of Mother's five-year-old Girl, whom Knight babysitted sometimes. Knight also claimed that Plaintiff had held a knife to Mother's throat and she was very afraid of him. Knight told this to crisis center worker Mary Free, who called the Illinois Department of Children and Family Services hotline. Three days later, DCFS supervisor Mickey Owen and investigator Leslie Foott visited Mother and observed Girl's bruises. Girl claimed Plaintiff had done it but Mother denied that, naming other possible offenders. Owen and Foott took Girl into protective custody and drove away with her.

In the car, when Foott asked Girl who did it, Girl again claimed Plaintiff had. Without any further investigation, Owen and Foott decided then and there to "indicate" Plaintiff (determine credible evidence existed to proceed against him). This was contrary to DCFS policy, which required further investigation. Foott called Free again, who insisted that Plaintiff was potentially dangerous, violent, and psychotic, based on nothing more than what Knight had told her. Later that day, Foott talked with another babysitter of Girl, who confirmed bruising but did not say who did it. No DCFS person got around to talking with Plaintiff himself for at least another month. Owen and Foott also disregarded Girl's psychiatric history.

Seven months later, Plaintiff got a part-time job with Maryville PD, which possibly could have led to full-time employment. However, a background check discovered DCFS's report of indicated child abuse, and Plaintiff resigned in lieu of being fired. Plaintiff was subsequently unable to find any other law enforcement job.

PROCEDURE: Plaintiff sued Owen and Foott in U.S. District Court for the Southern District of Illinois per 42 U.S.C. § 1983 for violating his Fourteenth Amendment right to due process, resulting in the indicated child abuse report and deprivation of his protected liberty interest in a law enforcement career. Owen and Foott moved for summary judgment on qualified immunity grounds, arguing that they had not deprived Plaintiff of any protected liberty interest, that they had allowed him due process, and that any right violated was not clearly established at the time. The trial court ruled that DCFS policies requiring investigation of alternative explanations and mitigating evidence amounted to a clearly established due process standard, and Owen and Foott decided not to follow them. QUALIFIED IMMUNITY DENIED. Owen and Foott appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: In their appellate briefs, Owen and Foott did not preserve their argument that their indicated child abuse report did not infringe on Plaintiff's protected liberty interest in a law enforcement career, so the Seventh Circuit assumed that Plaintiff did have such a protected interest. At any rate, state action can violate a liberty interest when it wrongfully ruins a person's good name, reputation, honor, or integrity to the point that the person cannot find work in his chosen field.

The trial court erroneously held DCFS policies to set the standard of Fourteenth Amendment due process in this case. Owen and Foott's actions had to be judged not by how closely they conformed to state policy, but by their obedience, or lack of it, to the Constitution. Here, since Owen and Foott decided to consider only inculpatory evidence, and to disregard or not even look for any exculpatory evidence, when they should have considered both equally, violated Plaintiff's due process rights.

However, since Plaintiff could find no reported court case that held similar behavior upon similar facts to be a constitutional violation, a reasonable child welfare investigator would not have been on notice that Plaintiff's rights had been clearly established. Plaintiff's cited cases either concerned Fourth Amendment issues, or were not clearly similar, or had been decided after the events of which Plaintiff complained. Plaintiff therefore did not meet his burden of clearly establishing his rights, and could not recover. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause REMANDED to the trial court for entry of summary judgment in Owen and Foott's favor.

EDITORIAL: What the [he]ck, over!? Eternal shame on Mickey Owen and Leslie Foott. I know the type--they think they're so much better than you because they are here For The Children. They consider themselves always right, above the law, and untouchable. The only thing that saved their sorry behinds is the Seventh Circuit's utterly absurd requirement that you have to show some exact court case already decided, otherwise the poor darlings aren't on notice that their arrogance violates the Constitution that SOME of us are under oath to preserve, protect, and defend to the death.

No clearly established right? Horsefeathers. Everybody with any LE background knows you're supposed to, on every case, make like O.J. and find the REAL killer. You do not add double hearsay to the word of a mentally disturbed child that you just took away from her mother, and then permanently brand someone a child abuser. EVERYBODY KNOWS THAT. Ever hear of Brady, Giglio, etc., that law enforcement and prosecutors have to follow? Why don't child abuse investigators have to do that too? The only consolation prize is that the next time this happens in Illinois, Indiana, or Wisconsin, the miscreants will get mashed. As it is, this Seventh Circuit panel just gave Mickey Owen and Leslie Foott each a coupon good for one free ruined life. That's a hundred kinds of wrong. Will the Seventh Circuit en banc, or better yet the Supremes, puh-leeeeze find it in their hearts to serve up Mickey Owen and Leslie Foott's heads on a large platter.