                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 17a0193n.06

                                            No. 15-1140


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

JOSEPH MIDDAUGH;            MARY     MIDDAUGH; )
MICHAEL MIDDAUGH,                                     )                          FILED
                                                      )                    Mar 29, 2017
        Plaintiffs-Appellees,                         )                DEBORAH S. HUNT, Clerk
                                                      )
v.                                                    )
                                                      )
CITY OF THREE RIVERS, a public body,                  )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
        Defendant,                                    )       COURT FOR THE WESTERN
                                                      )       DISTRICT OF MICHIGAN
and                                                   )
                                                      )                  OPINION
ERIC PIPER, Individually and in his official capacity )
as a police officer of the City of Three Rivers; )
NATHAN GIPSON, Individually and in his official )
capacity as a police officer of the City of Three )
Rivers,                                               )
                                                      )
        Defendants-Appellants.                        )


       BEFORE:       GUY, KETHLEDGE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Joseph and Mary Middaugh and their nephew

Michael filed suit against the City of Three Rivers and Police Officers Eric Piper and Nathan

Gipson raising claims under 42 U.S.C. § 1983 and Michigan law. The Middaughs alleged that

Officers Piper and Gipson wrongfully seized their personal property without due process of law

when they helped Joseph’s sister-in-law Chrystal take the Middaughs’ 1992 Buick from the

driveway behind the Middaughs’ home. The district court denied in part the Officers’ motion for
No. 15-1140
Middaugh, at al. v. City of Three Rivers, et al.

summary judgment on the basis of qualified immunity. The Officers filed a timely appeal, and

we affirmed. See Middaugh v. City of Three Rivers, 629 F. App’x 710, 718 (6th Cir. 2015).

       The Officers filed a petition for a writ of certiorari, and the Supreme Court issued a grant,

vacate, and remand order (GVR)—granting the Officers’ petition, vacating our opinion, and

remanding the case to this court for further consideration in light of Mullenix v. Luna, 577

U.S. ---, 136 S. Ct. 305 (2015) (per curiam), which the Supreme Court decided after we issued

our opinion. See Piper v. Middaugh, 136 S. Ct. 2408 (2016) (mem.). “[O]ur law is clear that a

GVR order does not necessarily imply that the Supreme Court has in mind a different result in

the case, nor does it suggest that our prior decision was erroneous.” In re Whirlpool Corp.

Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013) (collecting cases).

Rather, our task following the GVR in this case is to “determine whether our original decision to

affirm the [qualified immunity] order was correct or whether [Mullenix] compels a different

resolution.” Id. Upon reconsideration, we find that Mullenix has some impact on the resolution

of this case and REVERSE the district court’s denial of qualified immunity.

                                   I.     BACKGROUND

       The 1992 Buick at the center of this dispute changed ownership within the Middaugh

family several times prior to the events in this case. Joseph first purchased the car in 2010, but

he sold it to Chrystal’s sister in 2011. Chrystal and her husband Lucky—who is Joseph’s

brother—later purchased the car themselves and then sold it back to Joseph in May of 2012. At

that time, Lucky gave Joseph a bill of sale for the Buick and explained that he could not find the

title. Joseph did not immediately apply for a replacement title.

       The family’s first dispute over the Buick took place on or around May 18, 2012, after

Lucky had given Joseph the bill of sale. Lucky went to Joseph and Mary’s house and tried,



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unsuccessfully, to retake possession of the car, and Officer Piper was called to the scene. Joseph

was not home at the time, but he spoke to a police dispatcher by phone and said that he had a bill

of sale for the Buick and was on his way home to show it to Officer Piper. But Lucky and

Officer Piper left the house before Joseph arrived and did not take the Buick. Joseph later

followed Lucky to the Cook Agency, which insured the Buick, and Lucky and Joseph got into a

fist fight in the parking lot. Officer Piper arrested Joseph a short time later as a result of the

fight. After several weeks the brothers made peace and Lucky accompanied Joseph to the

Secretary of State’s office where Joseph applied for a replacement title. The Secretary of State

issued a title listing Joseph and Mary as the owners of the Buick.

       The second dispute, which gave rise to the present case, occurred almost a year later. On

April 5, 2013, Chrystal and a male friend went to the police station and spoke to Officer Gipson.

Chrystal told Officer Gipson that she was divorcing Lucky and that her attorney had advised her

to get the Buick titled in her name and to ask the police to provide security while she retrieved

the vehicle from her brother-in-law Joseph’s house. Chrystal showed Officer Gipson her keys to

the Buick and a copy of a document entitled “Application for Michigan Vehicle Title” that she

had obtained from the Secretary of State earlier that day, and Officer Gipson showed the

document to Officer Piper. Chrystal told the Officers that there had been issues regarding the

car’s ownership in the past, and she asked them to escort her to the Middaughs’ house because

she was afraid that someone might try to prevent her from taking the Buick and that the situation

might turn violent.

       Officer Piper drove Chrystal to the Middaughs’ house in his patrol car and Officer

Gipson followed in a second patrol car. When they arrived, Officer Piper parked his patrol car

on the Middaughs’ property between the house and the Buick. Officer Gipson parked nearby.



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Both Officer Piper and Chrystal exited his patrol car, and Chrystal unlocked the Buick, started it,

and drove away, taking personal property of Michael’s that was inside the Buick with her.

Officer Piper then returned to his patrol car, and he and Officer Gipson left the scene. Mary was

home when the Officers arrived and she noticed the patrol cars pulling up, but because of the

way the patrol cars were parked she could not see anyone getting into the Buick. She did not try

to make contact with the Officers while they were briefly outside her home, but after they left

and she saw that the Buick was gone, Mary called 9-1-1 to report that her car had been stolen.

       Officer Gipson returned to the Middaughs’ house in response to Mary’s 9-1-1 call and

Mary tried to show him her title to the Buick. But Officer Gipson refused to listen to Mary,

saying Chrystal had proof of ownership. Joseph and Mary later spoke to a detective at the police

station, Sergeant Mike Mahoney, who instructed Officer Piper to investigate the matter further.

After reviewing the Middaughs’ ownership paperwork, conferring with the Secretary of State’s

office, and checking state record systems, Officers Piper and Gipson concluded that the

Middaughs were, indeed, the rightful owners of the car. Sergeant Mahoney told the officers to

retrieve the Buick from Chrystal. Chrystal returned the Buick to the police station at the

Officers’ request, but not until roughly three weeks after the incident. At that point, most of

Michael’s personal property was missing and the Buick itself was damaged.

                         II.    JURISDICTION & STANDARD OF REVIEW

       Congress “grants appellate courts jurisdiction to hear appeals only from ‘final decisions’

of district courts[,]” and “interlocutory appeals—appeals before the end of district court

proceedings—are the exception, not the rule.” Johnson v. Jones, 515 U.S. 304, 309 (1995)

(quoting 28 U.S.C. § 1291). One such exception, the “so-called collateral order[]” doctrine,

provides for immediate appeals from district court orders denying qualified immunity. Id. at 310



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(discussing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)); see also id. at 311–12.

This exception is a narrow one. Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008). An

order denying “qualified immunity is immediately appealable” under the collateral order doctrine

“only if the appeal is premised not on a factual dispute, but rather on ‘neat abstract issues of

law.’” Id. (quoting Johnson, 515 U.S. at 317). “We lack jurisdiction to review a summary

judgment ruling on qualified immunity insofar as that order determines whether or not the

pretrial record sets forth a genuine issue of fact for trial.” Kindl v. City of Berkley, 798 F.3d 391,

398 (6th Cir. 2015).

       Because the Officers’ appeal raises “the abstract or pure legal issue of whether the facts

alleged by the [Middaughs] constitute a violation of clearly established law,” we have

jurisdiction and review the district court’s denial of summary judgment de novo. Cochran v.

Gilliam, 656 F.3d 300, 305 (6th Cir. 2011). We consider only the facts as alleged by the

Middaughs, including undisputed record evidence viewed in the light most favorable to them.

Id. at 305–06; see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2017 (2014).

                                            III.    ANALYSIS

       The Middaughs seek civil damages against the Officers pursuant to 42 U.S.C. § 1983,

which “provides a cause of action against any person who deprives an individual of federally

guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). At

the same time, the doctrine of qualified immunity protects government officials “from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); see also Hensley v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012). The

doctrine of qualified immunity is designed to balance “the need to hold public officials



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accountable when they exercise power irresponsibly” against “the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

       Courts make “two inquiries when resolving qualified immunity claims: (1) whether the

facts, viewed in the light most favorable to the plaintiff, show a violation of a constitutional

right, and (2) whether the right at issue was ‘clearly established’ at the time of the defendant’s

alleged misconduct.” Cochran, 656 F.3d at 306 (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). Courts may consider these questions in either order. See Pearson, 555 U.S. at 236.

The Supreme Court’s opinion in Mullenix addressed only the second question. 136 S. Ct. at 308.

Here, we address the constitutional violation question first and then proceed to a discussion of

Mullenix and whether the rights at issue were clearly established.

       A.      The Middaughs’ Constitutional Rights

       The Middaughs allege that, by helping Chrystal take the Buick from the Middaughs’

home, the Officers violated the Middaughs’ rights under the Fourth Amendment, which prohibits

unreasonable searches or seizures.1 See Soldal v. Cook Cty., 506 U.S. 56, 61 (1992). The parties

do not dispute that Chrystal’s actions amount to a “seizure” of the Buick,2 but the Fourth



1
  The Middaughs also allege a violation of the Fourteenth Amendment, which protects against
deprivation of property without due process of law. See Fuentes v. Shevin, 407 U.S. 67, 80–81
(1972). The District Court analyzed both of the Middaughs’ constitutional claims under a Fourth
Amendment reasonableness standard, concluding that here the Fourth and Fourteenth
Amendment claims involve the same inquiry. The parties have not asked us to review this
conclusion or to apply a different constitutional standard on appeal, and our analysis will focus
on the Middaughs’ Fourth Amendment claim.
2
  The Officers argue that the seizure did not encompass the personal property inside the vehicle
because there was no intent to acquire physical control over such property. It appears from the
record, however, that the Officers presented this argument for the first time on appeal.
Accordingly, we decline to address it. See Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993)


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Amendment’s prohibition on unreasonable seizures applies “only [to] governmental action.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984).          Governmental actors “can be held

responsible for a private decision” if they have “exercised coercive power or [have] provided

such significant encouragement, either overt or covert, that the choice must in law be deemed to

be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Therefore, to have violated

the Fourth Amendment, the officers’ conduct would need to have been both (1) sufficient to

transform the private repossession into state action and (2) unreasonable.

               1.      State Action

       We have had multiple occasions to consider what level of police involvement transforms

an otherwise private act of repossession into state action for constitutional purposes. See, e.g.,

Hensley, 693 F.3d at 689–91; Cochran, 656 F.3d at 306–08; United States v. Coleman, 628 F.2d

961, 963–65 (6th Cir. 1980). Most recently, in Hensley, we explained that repossession cases

fall “along a spectrum of police involvement” from “[d]e minimis police involvement not

constituting state action” to active police “intervention or aid” sufficient for state action. 693

F.3d at 690–91; see also Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999). The scales tip

toward state action “as police involvement becomes increasingly important” to completing the

repossession. Hensley, 693 F.3d at 689. To determine whether an officer’s conduct transforms a

private repossession into state action, our cases have looked for decades to the purpose and effect

of the conduct, “distinguish[ing] between conduct designed to keep the peace and activity

fashioned to assist in the repossession.” Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32

F.3d 989, 995 (6th Cir. 1994).




(“In general, issues not presented to the district court but raised for the first time on appeal are
not properly before the court.” (alteration omitted)).


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       We recognize that “a police officer’s presence during a repossession solely to keep the

peace . . . is alone insufficient to convert the repossession into state action.” Hensley, 693 F.3d at

689. “[T]he standard has long been that” police officers are not liable for a private party’s

actions if the officers “merely ‘stand by in case of trouble.’” Cochran, 656 F.3d at 310 (quoting

Coleman, 628 F.2d at 964)). In Coleman, for example, we declined to find state action where

police officers “parked down the street and around the corner,” “remained in their car,” and

“neither encouraged nor directed” a private individual as he repossessed a debtor’s truck.

Coleman, 628 F.2d at 963, 964. We held that the police officers’ “presence at the scene” in

Coleman “was not an indispensable prerequisite for repossession of the truck” and that “[t]heir

benign attendance was not designed to assist [the private individual] in repossession . . . rather, it

was in furtherance of their official duties.” Id. at 964.

       Officers “cross the line” into state action when they “take an active role in a seizure or

eviction,” Cochran, 656 F.3d at 310, and “affirmatively intervene to aid the repossessor,” id.

(quoting Marcus v. McCollum, 394 F.3d 813, 818 (10th Cir. 2004)). In Hensley, decided in

2012, we held that deputy sheriffs crossed this line when they: “arrived at the Hensley residence

with, and at the request of” the would-be repossessor; got out of their official vehicle; “ordered”

one of the plaintiffs “to move from between the Buick and the tow truck” as the plaintiff “was

attempting to thwart the repossession”; “ignored [one plaintiff’s] demands to leave the property”

and another plaintiff’s “protest and . . . explanation” that the repossession was illegal; “told [the

plaintiffs] that [the private individual] was taking the Buick”; and broke the Buick’s front

window with a handgun, unlocked the doors, and forcibly removed one of the plaintiffs who had

entered the car in an attempt to stop the repossession. 693 F.3d at 691–92. In Cochran, we




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found state action when officials themselves entered the plaintiff’s home and carried out his

property, and allegedly threatened to arrest the plaintiff if he interfered. 656 F.3d at 308.

       We turn to the facts of this case. Unlike in Coleman, where the officers parked around

the corner from the events and stayed in their cars, Officer Piper drove Chrystal onto the

Middaughs’ property in a patrol car and exited the vehicle. The district court found that this

difference, plus the fact that “Officers Piper and Gipson arguably set a ‘screen’ to hide and

protect Chrystal” as she took the car, constituted more than simply keeping the peace. Middaugh

v. City of Three Rivers, No. 1:13–CV–909, 2015 WL 505793, at *7 (W.D. Mich. Feb. 6, 2015).

According to the district court, “[a]bsent such assistance from the officers, it is unlikely that

Chrystal would have taken the Buick.” Id.

       In Cochran we noted that one of the facts contributing to our finding of state action was

that the officials there “interposed themselves between Cochran and the [l]andlords to allow the

[l]andlords to take Cochran’s property.” Cochran, 656 F.3d at 308; see also Hensley, 693 F.3d

at 689 (noting that courts may find state action where “[a]n officer’s conduct . . . facilitate[s] a

repossession”). Similarly, Officer Piper interposed himself between the Middaugh home and the

Buick, blocking Mary’s view and providing Chrystal with easy, protected access to the car.

Mary did see the patrol cars, but did not exit the house or call 9-1-1 until the officers left and she

could see that the Buick was gone. These facts might suggest that the way Officer Piper drove

onto the Middaughs’ property and placed himself and his patrol car between Mary and the Buick

deterred Mary from voicing objection.          As we noted in Hensley, “[e]ven without active

participation, courts have found that an officer’s conduct can facilitate a repossession if it chills

the plaintiff’s right to object.” 693 F.3d at 689; see also id. at 690 (collecting cases).




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        We find that the Officers’ conduct crossed the line, rendering the repossession state

action. By driving Chrystal onto the Middaughs’ property and enabling her to seize the car

without objection, the Officers “affirmatively intervene[d] to aid the repossessor.” Cochran, 656

F.3d at 310 (quoting Marcus, 394 F.3d at 818). Thus, the Officers’ conduct was sufficient for

state action.

                2.     Unreasonableness

        The Fourth Amendment reasonableness standard requires courts to determine “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.” Graham v. Connor,

490 U.S. 386, 397 (1989); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968) (“[W]ould the facts

available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was appropriate?”). This inquiry “reflect[s] a careful

balancing of governmental and private interests.” Soldal, 506 U.S. at 71.

        The district court found that Chrystal never claimed to have a court order awarding her

possession of the Buick, nor did she claim to be a creditor entitled to use self-help to repossess

the car under state law. The district court also found that the Officers knew that ownership of the

Buick was disputed because Chrystal told them as much and because Officer Piper had arrested

Joseph after the first dispute over the same car. Furthermore, the document Chrystal showed the

Officers, an application for title, was itself suspect because the document said both that

Chrystal’s spouse had given her the vehicle and that Joseph—who Officer Piper knew was not

Chrystal’s spouse—had sold her the vehicle. Neither Officer verified Chrystal’s ownership

claim prior to assisting her efforts to seize the Buick. When they did investigate after the fact,

they quickly realized that Chrystal had no legal claim to ownership.



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       In light of this record, we affirm as a matter of law the district court’s conclusion that the

Officers acted unreasonably in violation of the Middaughs’ Fourth Amendment rights. See

Cochran, 656 F.3d at 308 (noting that “police officers [who] take an active role in a seizure or

eviction” generally “are not entitled to qualified immunity . . . when there is neither a specific

court order permitting the officers’ conduct nor any exigent circumstance in which the

government’s interest would outweigh the individual’s interest in his property”).

       B.      Clearly Established Rights

       Having determined that the seizure here violated the Middaughs’ Fourth Amendment

rights, we must now determine whether those rights were clearly established at the time. If the

officers’ particular conduct did not clearly violate such rights under then-existing precedent, the

officers are protected from liability by qualified immunity.

       In Mullenix—an excessive force case under the Fourth Amendment involving a police

chase and fatal shooting—the Supreme Court reiterated that “[a] clearly established right is one

that is ‘sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.’” 136 S. Ct. at 308 (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012)). Showing that a right is clearly established “do[es] not require a case directly on point,

but existing precedent must have placed the statutory or constitutional question beyond debate.”

Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Mullenix emphasized that for

qualified immunity purposes, clearly established law must be defined specifically, not “at a high

level of generality.” Id. (quoting al-Kidd, 563 U.S. at 742). “The dispositive question is

‘whether the violative nature of particular conduct is clearly established,’” id. (emphasis added

by Mullenix) (quoting al-Kidd, 563 U.S. at 742), and courts must undertake this inquiry “in light

of the specific context of the case, not as a broad general proposition,” id. (quoting Brosseau v.



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Haugen, 543 U.S. 194, 198 (2004) (per curiam)). “Such specificity is especially important in the

Fourth Amendment context, where . . . ‘[i]t is sometimes difficult for an officer to determine how

the relevant legal doctrine . . . will apply to the factual situation the officer confronts.’” Id.

(quoting Saucier, 533 U.S. at 205). In sum, Mullenix instructs that the qualified immunity

inquiry must be formulated not based on general principles, but rather on officers’ specific

conduct, especially in the Fourth Amendment context.

       Whether the Middaughs’ rights were clearly established depends on the “objective legal

reasonableness” of the Officers’ specific conduct. Cochran, 656 F.3d at 306 (quoting Anderson

v. Creighton, 483 U.S. 635, 639 (1987)). This fact-specific analysis asks whether reasonable

officials in the Officers’ positions could have believed that their conduct was lawful at the time.

Id. We look to the totality of the circumstances here in light of then-existing precedent. For

example, although we find the Officers’ conduct here more similar to the physical interventions

in Cochran and Hensley than the distant observation in Coleman, the conduct in both Cochran

and Hensley includes some substantive distinctions from the Officers’ conduct here. In those

two cases, the officers engaged in direct confrontations with the plaintiffs. The officials in

Cochran threatened to arrest the plaintiff, and in Hensley an official brandished his handgun,

broke a car window, and pulled the plaintiff out of her car. Although the Officers here came

onto the Middaughs’ property, parked a patrol car between the Buick and the Middaughs’ home,

and stayed until Chrystal left with the Buick, the Officers neither threatened arrest nor used

force. They had no direct interaction with the Plaintiffs.   In light of the analysis in Mullenix, we

find it not beyond debate that reasonable officers in their position could have believed their

conduct was lawful under then-existing precedent.




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       It is important to note that Mullenix does “not require a case directly on point,” 136 S. Ct.

at 308, and “the very action in question” need not have “previously been held unlawful,” Hope v.

Pelzer, 536 U.S. 730, 739 (2002). For example, “a general constitutional rule already identified

in the decisional law may apply with obvious clarity to the specific conduct in question.” Id. at

741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). Mullenix does not undermine

our circuit’s longstanding holding that “an action’s unlawfulness can be apparent from direct

holdings, from specific examples described as prohibited, or from the general reasoning that a

court employs.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).             However, there is

sufficient daylight between the Officers’ conduct here and the conduct in Cochran and Hensley

that those precedents may not “apply with obvious clarity to [this] specific conduct.” Hope, 536

U.S. at 739 (quoting Lanier, 520 U.S. at 271). Therefore, Officers Piper and Gipson are entitled

to qualified immunity.

                                          IV.      CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s denial of qualified

immunity and remand the case for further proceedings consistent with this opinion.




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