Tuesday, August 30, 2005

sec. 1983 - police liability for part in private repo. in DV case

Harvey v. Plains Township Police Department - 3d Circuit Court of Appeals, August 30, 2005

Summary judgment in favor of individual police officer reversed (2-1) in 42 USC 1983 case.  Plaintiff alleged that the officer took part in an improper entry into her apartment and an ex parte private repossession of her property by her former boyfriend.  The court held that, in a summary judgment procedural posture, the evidence showed that

        a) the officer took part in "state action" by ordering the landlord to open plaintiff's apartment, contrary to the direction of an existing protection from abuse (PFA) order.

        b) such action violated plaintiff's clearly established 4th Amendment  constitutional right to be free of unreasonable searches/seizures

        c) the officer was not entitled to qualified immunity -- There was a violation of clearly established constitutional rights, and a reasonable police officer would have believed that his conduct deprived plaintiff of her constitutional rights.  The court held that a letter from the boyfriend's attorney to the plaintiff's attorney did not give the officer a reasonable belief that plaintiff consented to the boyfriend's seizure of property at her home, especially given knowledge of the PFA order.  "A reasonable offivce at least would have refused to assist with opening the door until he was satisfied that consent was given."  His actions went well beyond keeping the peace.

The dissent felt that the officer was entitled to qualified immunity.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg