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"stt_transcript": "26-1286 from the Eastern District of Missouri, Carl Rose et al. v. Sheriff Wes Drury et al. Alright, Mr. Reitman Cash, we'll hear from you first. You can lower the podium as well. Thank you. Chief Judge Colleton, and may it please the Court. Under this Court's precedence, an officer executing a judicial order must form a reasonable belief that the order covers the property he is seizing. These officers formed no belief at all. They told my client that they didn't know what the order covered, and then they handed that decision off to my client's political adversary and his attorney. But even if this Court disagrees with us on qualified immunity, it should reverse as to the claims against the private actors, who have never argued they are entitled to qualified immunity. The dismissal of the claims against the private defendants, Cottle and Dormier, was based on a state action test that the District Court applied sua sponte, that defendants notably do not endorse on this appeal, and that this Court has only ever applied in the context of suppressing evidence in criminal cases. That was wrong, and this Court should reverse. I welcome the Court's questions. Counsel, explain to me on your qualified immunity argument, why you think the District Court got it wrong. So, there's two, I guess there's two qualified immunity arguments. One is about who decided what to seize, and one is about who was present at the seizure. So, on who decided what to seize, what this Court has held is that an officer must form a reasonable belief that what is being seized is covered by the order. I think the allegation that's kind of at the core of our case on this point is just that these officers plainly did not have any opinion about what was being seized. If you take a look at the video that's attached to the complaint, you'll see Dormeyer, that's my client's adversary's attorney, walking through the house and deciding what to seize. And the officers are just there, you know, with their guns flanking Dormeyer, not saying anything, never interjecting. And it's clear that, you know, just deferring to Dormeyer can't be enough, because if you look at the video, you'll see that Dormeyer clearly wasn't making any decisions on what to seize, based on what's in the order. You know, Dormeyer spent most of that... What was the limitation in the order? What couldn't they get, based on that order? So, the order is directed at Carl Rose's personal property. That does not include marital property, because that's not Carl Rose's personal property under Missouri law. Now, we understand that, like, in a lot of situations, it's going to be hard for officers to tell the difference between personal and marital property, and we're not saying that the officers have to, you know, heed every objection at the scene. We're saying that officers have to form an opinion about whether what they're seizing is covered by the order at all. And these officers very specifically, or we allege, these officers very specifically said, we don't know what this order covers, and when Cottle and Dormeyer get here, then they'll tell you what they're taking. And then if you watch that video attached to the complaint, you'll see that, I mean, the officers just do not have an opinion about what this order covers, or whether, you know, what they're taking, whether what Dormeyer is taking is pursuant to the order. So, I think a good example of this, Judge Smith, is several times throughout the video, Dormeyer demurs on whether they're going to take something, based on whether he thinks his client will want it, personally. Not on whether it's Carl Rose's personal property. So, there's like an antique shelf. He's asked whether he's going to take that. He said, I'll talk to my client about that. The couple's bed, he said, I'll talk to my client about that. And the problem with that is, like, that's not how this process is supposed to work. This is property being seized by the county so that the county can auction it and generate value. And then the value goes to the creditor. The property doesn't just go to the creditor. And if the police are sitting by, watching the creditor's attorney make decisions about what to seize. Isn't that what happened here? The property that was seized was ultimately put up for auction? Yes, absolutely. So, you're saying they seized too few items of property because the client didn't want some of the property, and that violates the Fourth Amendment because they didn't form an opinion that it was seizable? No, it's not too few or too many. The issue is whether the officers themselves are forming a reasonable belief that the seizure is happening according to the order. A subjective belief? No. So, it's a Fourth Amendment test. So, it's an objective. The question is whether there's an objectively reasonable basis. So, what do you mean that they have to form an opinion? You mean a subjective opinion? Or do you just mean as long as the opinion that was manifested objectively is reasonable, then it's a permissible seizure? It's the latter. So, they may objectively form the opinion that whatever was seized was seizable. So, they didn't. I don't think a reasonable officer in this situation could have formed that opinion. Again, I encourage you to watch the video attached to the complaint. While you're talking subjectively, what they subjectively formed as an opinion, but objectively they allowed the property to be seized. So, objectively, an officer watching a private citizen decide what to seize based on criteria that is plainly not related to the judicial order could not form a reasonable belief that the seizure is happening according to the order, that what is being seized is the property subject to the order. Counsel, it seems the language of the court order is so broad that it says that they were entitled to levy defendants' personal property to satisfy the judgment. If it's his residence, virtually anything there could be thought of as dispersonal property. And that what wasn't could be sorted out in the interim until a sale takes place. A few points on that. First, personal property does not mean all property found at a person's marital home. Second, again, it's about whether these officers had a reasonable basis to believe that everything being seized was covered under the order. And these officers did not. These officers, I mean, this is what I was just saying to Judge Colleton. And third, you know, the existence of post-deprivation procedures, this court — I don't know what the practice would be in Missouri, but was this unusual to have legal counsel present to give advice about what was seizable and what was not? Yes. So our understanding is this is extremely unusual. We state in the complaint that the sheriffs at the scene said that they had never heard of a seizure like this in 35 years of doing this. And, you know, I just — I think the reason for that is that when you have a seizure that is not related to particular property but is instead meant to generate value, the creditor's attorney is not going to know anything that's going to be helpful. Was there an opportunity to retrieve things that wouldn't have qualified before the sale? Yes. There was an opportunity. So there are post-deprivation procedures. My client was pro se at the time. He filed several motions with the state court. He didn't follow the exact procedures that he was supposed to. But I want to be clear that under this Court's precedent on Bonk, Audio Odyssey, and the Supreme Court, the existence of post-deprivation procedures does not cancel the underlying constitutional violation. It might go to damages. That's a separate issue. But that cannot be a reason to dismiss. I mean, I think that would violate on Bonk and Supreme Court precedent. Counsel, in practice, if we re-adopt the ruling or the principle that you're advocating for, how would that play out in the real world if, you know, the sheriff shows up to seize property? Wouldn't somebody just claim that everything in the house is marital property and not theirs? And what happens then? So I think in the real world, the vast, vast majority of seizures are going to be perfectly fine. This is a very low bar. All the officers have to have is a reasonable belief that the property they are seizing is covered by the order. There is already a precedent in this circuit, the Johnson case from 1999, that says that the officer doesn't just have to take the word of the person at the scene as to whether property is personal property or subject to the order or marital property. So, again, we're not saying that that's, you know, that that's the line here, so they should have just packed up and left. We're saying that the officers who are ordered to seize personal property should have formed an opinion about whether the property that was being seized was, in fact, covered by the order. And they can't just hand that decision off to private parties who, we allege, have no superior knowledge. And, you know, this can cash out differently if the private parties do have superior knowledge. There are situations where a seizure might justify an officer deferring. For example, we cite a case from the New Hampshire Supreme Court where there is a seizure of certain animals and the officers rely on the expertise of, like, a local animal organization about how to do the seizure. That makes sense. I think what we're talking about here is a situation where officers abdicate the decision entirely and they abdicate it to people who have no knowledge whatsoever, no superior knowledge to the officers about what should be seized. Did the folks with the campaign T-shirts come on the property to help carry stuff off, or did they stay off property? The folks with the campaign T-shirts came on the property. And, as we allege, they caused a lot of damage also while they were carrying stuff off. And that brings me to the other qualified immunity arguments that the Supreme Court has held, that if police officers are going to bring private people into the search of a private home, the private individuals need to have a direct relation to the police's constitutional justification for entry. And, you know, that is a general principle, but here we do think that there's an obvious violation of that more general principle. The only justifications that we've heard at any point throughout this litigation for the private parties being part of this search, from the other side, is it was up to the creditor under Missouri law to decide what to take, which is just a misunderstanding of Missouri law. And then the other justification is that they were there to help carry stuff off. But if that counts as a direct relation to the constitutional justification for entry, then police can just bring whoever they want into any private home by, you know, handing, as literally as muscle. I mean, you could imagine a situation where police officers bring private people into a home and have them do the handcuffing, have them do the carrying away of suspects. And if that, you know, that's physical help, if that's enough, then I'm not sure Wilson stands for anything. If I could briefly turn to the state action point. Even if you disagree with everything that we've just said, you should still reverse as to the claims against the private defendants. The private defendants have never argued they're entitled to qualified immunity. Their argument is that, or the claims against them were dismissed based on the state action test that we have explained is wrong. This Court has never applied in that context. I'd be happy to answer other questions about it. But the thing I want you to understand is, you know, these are separate issues. And a reversal on state action is completely possible even if you disagree with us on qualified immunity. I'll be back up on rebuttal. Thank you. Well, on the state action point, you're saying they're subject to the Fourth Amendment even though they're not? What's your theory on the private persons? So our theory is that the test for state action is context specific. And in the context of the private people seizing private property, you know, when public officials are present, the test essentially boils down to whether the government has cloaked the private people in a kind of authority that allows the private people to take the property where they otherwise would not be able to do so without it being theft. So a good example of this is there's Thompson v. Cockrell, this case from 2025, this Court's case from 2025. That was a situation where an officer was at the house for a breach of peace call, and the gate was unlocked, and some private person walked in and stole a bike. And this Court said that's not state action because the private person can steal the bike, you know, regardless of whether the officer is there. But this is the polar opposite of that. This is private people who would not have even gotten into the house if there weren't officers with guns anywhere. So your point is that they are, therefore, state actors subject to the Fourth Amendment? Yes. All right. And if what they did is reasonable, then there would be no claim against them. Well, so I think the issue with that – Is that right? Not quite. But if what the officers did – the question of whether what the officers did was reasonable is different from the question of whether what the private parties did was reasonable. Well, I didn't say it was not different. I said if what they did is reasonable, then they would not be liable. Is that true? If private parties' actions are reasonable, which is an issue that no party has briefed here, and they have never argued, if that is the case, then the private – the claims against the private parties would fail. But the private parties have only ever argued that the police officers' actions are reasonable. And they seem to – I think they think that they have like a derivative – Why would their reasonableness be different? So all of the arguments we've heard about – If you're claiming they're state actors. So all of the arguments we've heard about the state actors' unreasonableness have been about how there are these competing duties under state law for sheriff's officers and how there's a judicial order that they have to follow, and if they don't follow it, none of those arguments would apply to the private actors. I'm not sure how it would cash out. I mean, we've responded to – Well, if you're saying the reason they're state actors is they're cloaked as part of the police operation, why wouldn't – why wouldn't it also follow that the reasonableness inquiry is the same? So it wouldn't follow because I guess just, you know, a core part of 1983 is that liability is individual. And there are different factors going into the reasonableness calculus of private actors. Private actors can't just do something because there are police there, right? And private actors don't have an order directed at them. And private actors don't have any competing duties under state law. And, I mean, frankly, I guess we're getting into the weeds of an argument like the defendants haven't made. They have not argued they're entitled to qualified immunity on the basis of their own actions being reasonable. They are saying the sheriff's actions are reasonable, and derivatively, therefore, there can't be a Fourth Amendment violation. But that's not how I think this Court should do the analysis. All right. Thank you for your argument. Would you – is it all right – I know my time has run out now, but would you mind if I came up for a few minutes of rebuttal? Well, we usually don't add more time, but we'll consider after we hear from the police. Let's see. Mr. Plunkett, are you first? Yes, Your Honor. Very well. We'll hear from you. And, Your Honor, I will be speaking for the first portion. We have counsel for Dormier, who will be taking the second portion, and counsel for Caudill taking the third. May it please the Court, counsel, as I said, I represent – or I don't know if I said – I represent Wes Drury. I represent Chief Deputy Meredith. And you had some questions previously, Judge, with respect to whether this is an object of reasonableness test. I want to just go right at that. It is. We're talking about the Fourth Amendment. Object of reasonableness is what takes precedence. You heard some discussion earlier from counsel with respect to the Johnson case. That's in 1999 from this Court. And I'll quote it. To argue that the dispossession becomes unconstitutional simply because the deputy serving the writ should have known these facts beforehand borders on the frivolous. I believe those were the closing words of Johnson, and that's very important because in Johnson this – the allegations were that a boat, I think a trail or two, were taken from the driveway where the writ said any and all personal property of the judgment debtor located at 1812 West Arlington, Lincoln, Nebraska. Well, that should sound very similar to what we have here, all personal property of the debtor. As it turns out in Johnson, the deputy was wrong. That was actually property of someone else. But this Court still found that there was qualified immunity. And the attorney for the debtor was telling the deputy, don't take that boat. That's not the debtor's. And this Court said, you don't have to heed warnings from some stranger attorney. That's not the obligation of the deputy. But in Johnson, weren't there – doesn't the Court point to reasons that the deputy's decision was objectively reasonable, like the boat was about to be moved and he asked for proof of ownership that wasn't produced? Yes, yes. And here, to analogize that, the video is attached to the complaint. So we had some questions earlier on opening oral argument with respect to what was it that took place during that search in the video? Well, Mr. Dormeyer asked questions, sure. But the allegations were that my clients were there, and they were. You can see Wes Jury in the video, and Ron Meredith is taking the video. So that's also in the complaint that they were there. So how was it objectively reasonable then to seize the pink horse tack when they're being told this is my daughter's? And what would be the objectively reasonable reason to believe that that was not true? Because there was no allegation either in the complaint, nor did the video say anything about that pink horse tack being the daughter's. In fact, all the property that was identified, because the plaintiffs were there too, the adult plaintiffs were there during that walk-through, and they stated, as you see in the video, this property is grandmother's, or this is a children's bedroom. And Mr. Dormeyer says, okay, well, we're not going to take that. So to your point on reasonableness and objective reasonableness, when the response of the plaintiffs themselves say, they don't say this pink horse tack is my daughter's. They leave it alone and don't talk about it. Well, to the point with respect to, we're at the debtor's house. The sheriff deputies aren't there to weigh evidence. And Missouri has a procedure for all of that. Was the daughter a minor? I believe so. Under Missouri law, would she have separate property from the parent? I believe personal property can be owned by a minor. I thought about the same thing. But she has an intervention ability just as any person could through a next friend. It could be owned by the father, or it could be owned by the daughter. That's right. Do you think it's therefore unclear, sort of like with the marital property? Correct. And if it was anything like my household, my father constantly reminded that I don't own anything when I was a minor. It was all this. Did I just hear you say that you think that the outcome would be that the daughter should have gone and found a next friend to participate in the court proceedings after her horse tack is taken? That is the proper procedure for Missouri law. Why should a minor have that duty to have to go to court to get her stuff back? It's the same as any third party that has an interest in things that are being seized from property. It's the same rights as anyone else would. So that would be, that's the answer. So when we look to objective reasonableness, it's not that Dormeyer is questioning. It's the answers that plaintiffs give, and that is in the presence, and the answers that they don't give, and they don't say set this aside. That is knowledge that's in the complaint, and it's objectively reasonable for officers on the scene armed with that knowledge to make decisions on that. Now, we know under Duval, which is a state court case, if the deputy doesn't seize certain things, the deputy can be sued. And the Missouri Court of Appeals reversed and said, no, this goes to a question of fact, when the deputy showed up on the scene and the wife said, this is all marital property. And the deputy said, okay, well, if it's marital property, I'm not going to take it. Well, now that deputy is subject to civil liability. So we're coming into, and I know you had a question, Judge Smith, with respect to kind of the future implications. Think about a share, and we don't look in hindsight. Look at the things that are presented to these deputies at the time. Do they become liable to the creditor for not taking something, or do they take something with a contention that they're not obligated to listen to from the debtor for the Fourth Amendment? That's an impossible situation as an arm of the court, I would argue. And if you think about future implications, that rule that I believe plaintiffs would suggest you have would put deputies and sheriffs in a bind when trying to execute writs of and levying on property pursuant to court orders. So I think a few years after Johnson, Judge Levinsky Smith, I believe maybe one of the first opinions that you wrote, because it was a few months after you took the bench and was appointed, was the Coons case. And we know from the Coons case that there were individuals, kind of shifting gears a little bit, that there were individuals that helped take the property and store them for the sheriff's department. That didn't render it unconstitutional. And we also knew that that involves some marital property as well. Again, that didn't render it unconstitutional. So we have two Eighth Circuit cases, Johnson and Coons, that inform the officers, put the officers on reasonable notice of what's proper and what could be improper. There are no cases, which is the plaintiff's burden to cite, that are controlling on the point that what the deputy and the sheriff did here was unreasonable. That is critical for qualified immunity. So turning as well, I believe there was one point that came up with respect to the presence of the attorney. Well, Missouri, the argument isn't that the attorney gets to decide what is taken. That's not it. The argument is under the Mather case, which I cited in my brief, that compliance with, by the sheriff, it says where the plaintiff gives directions. Compliance by the sheriff relieves the liability of the plaintiff. And again, we're looking at directions of the plaintiff, which can speak to the attorney. And we're trying not to put the sheriff and deputies in this impossible situation where they're liable if they do and where they're liable if they don't. Turning very quickly to absolute immunity, unless there are other questions about qualified immunity. This is a court order. As mentioned, it was very broad. But we know from decisions from this court that it's not the absolute letter of the order, and it's too stringent to say that that's how absolute immunity applies. If you go beyond the four corners, you're automatically not within absolute immunity. No, that's not true. Pevelone v. Thomas is a case affirmed by this court, which authorized it by the circumstances. And I would urge this court with the video that the circumstances, given the writ, given the walkthrough, given the video that's a part of the complaint, they are doing what is commanded by the court and knowing going into these proceedings that afterwards, the Missouri court can have all these proceedings determine, okay, is it marital as a matter of law based on evidence we receive, and is the presumption rebutted, which is another, it's a judge task, not a sheriff task. So I see my time is close before I hand it over to defense counsel. Are there any other questions with respect to the sheriff and the deputy? Thank you for your argument. Ms. Weiler, we'll hear from you. Thank you, Chief Judge. Good morning. May it please the court, my name is Catherine Weiler. I represent Mr. Dormier in this appeal. I'd like to focus in my very brief time on two issues. One is the substance of the allegations themselves. I shouldn't say substance. The structure, the structural mechanism by which we evaluate these claims. These are claims alleging a constitutional deprivation under Section 1983. And so how does this court evaluate those claims and how does the district court evaluate those claims? There can only be liability if, number one, there is a constitutional deprivation, and number two, the actor was acting under color of state law. In this particular case, we're talking about an alleged Fourth Amendment violation for an unreasonable search and seizure in two instances. One related to the property taken. We've discussed that a lot today. The second relates to an allegation that it was unreasonable for Mr. Dormier to be present at the scene. That led to a question, I believe from you, Chief Judge Colleton, about whether it is normal for an attorney to be present at the scene in a situation such as this. And that's where the Tift case comes in. That's the Western District of Washington case, Tift versus Snohomish County. And the answer is yes. The court there specifically stated, quote, the court is unaware of any legal authority that holds that the presence of a judgment creditor's attorney invalidates a writ of execution or violates the debtor's Fourth Amendment rights. It's not a violation of the Fourth Amendment for an attorney to be present at a search and seizure in this type of situation. It's not a constitutional violation. And that leads, Chief Judge Colleton, to the second point that I believe you were making with opposing counsel. And that was the question about whether, because these allegations, certain of these allegations are against private actors, if this court determines that there is no constitutional violation, can there still be liability in the private actors? And the answer is no. There cannot be. Because there needs to be a constitutional deprivation at issue first. The second half of this court's consideration. What's the allegation against Dormeyer? Is it just that he was, his presence was unconstitutional? Is there an allegation that something he did while he was there violated the Fourth Amendment? So the allegation is that the search was unreasonable for two reasons. And it's the same allegation against the public actors and the private actors. It's not just that they allegedly took property. So it is both. Are you saying the answer should be the same as to the public defendants in Dormeyer? I am saying that, Judge, and even better for me, this circuit has said that. And that is specifically stated in the Johnson case. And that's what I'd like to close with. The court specifically said, quote, that a state actor violated their rights under the Constitution of the United States. That claim against the private actor must also fail. The same is true here. And we ask the court to make that finding. If there are no additional questions. Very well. Thank you for your argument. Mr. Bells, we'll hear from you. May it please the court. I represent John Caudill. You haven't heard a whole lot about him so far. And I would like, in addition to answering any questions, to emphasize the minimal role that he had in the complaint. Count one is a search and seizure claim against all defendants, unreasonable search and seizure. But the complaint makes it clear that John Caudill never entered the property. It sort of talks about Caudill civilians. And then it says, except for Caudill, they entered the property. There's also a video that describes everybody that's involved. It says who's wearing what. Mr. Caudill's not involved. He didn't enter the house. Is he the person that drove the truck away, though? Exactly. He was, according to the complaint, at the end of the driveway. And a person relayed a truck to him. So there wasn't any search. And on your point, I guess there could be an argument that there was a seizure. The truck was taken and then it was delivered to him and then he took it somewhere else. That truck is the one piece of property in the complaint that they say was owned by Carl Rose only. It wasn't marital property. So there can't be a Fourth Amendment violation with that piece of property. It's not part of their case. This whole case is about marital property. And the truck is the one thing that they say was Rose's only. It's also described by VIN, V-I-N, in the order. It was lawfully seized. So there wasn't any search and seizure violation by my client. I think if there's no underlying search and seizure by the other defendants, I don't think my client would be liable either. The next count is a conspiracy claim. A meeting of the minds must be pled with specificity. Is there a record to indicate why Mr. Cottle drove the truck away as opposed to the sheriff's deputy or someone with the government's authority? I don't think there's anything in the complaint that says why it happened. I don't know why. The count chooses a conspiracy claim. Does the claim allege who delivered the truck to Cottle? Yes, it was one of the non-defendant civilians that was there. I don't remember his name. It was just a person that was there. Sort of took it to the edge of the property. Cottle wasn't allowed on the property, according to the complaint. The conspiracy must be pled with specificity. There's nothing in the complaint about Mr. Cottle's meeting of the minds with anybody else. He never spoke with a sheriff or anybody like that. There was a planning meeting. He's not alleged to have attended it. And finally, the conspiracy has to have the objective of violating constitutional rights. But there's no allegation that my client knows anything about marital rights or tenancy by the entireties. And I think, lastly, ten seconds, the point of conspiring to take marital property would be very strange because these parties have an exemption right. They could just go and, you know, they have 20 days from execution to say, well, that property was exempt. We get it back. They didn't do it. It wouldn't make any sense. All the arguments you're making on civil conspiracy, the district court didn't get there, did it? Since it was just deciding that no constitutional violation, therefore, there can't be a civil conspiracy. That's exactly right. They just said no Fourth Amendment violation, so no conspiracy. Very well. Thank you for your argument. Thank you, Your Honor. Only if you want me. We'll give you two minutes, but please adhere to the limit. So, I want to hit on a few points on qualified immunity. My friends on the other side mentioned Kuntz. The only Fourth Amendment claim in Kuntz pertained to the magistrate judge not signing the judicial order. The court disposed of it in a footnote. It was a procedural due process. The language they quote from Kuntz is a procedural due process claim, and that is the only kind of federal claim the Supreme Court has held, is defeated by the mere extension of process. All the other, you know, all the other claims in the Bill of Rights are not defeated by the mere extension of process, which is what this court held in Audio Odyssey on Bonn. If you disagree with us about qualified immunity, I don't think that a finding that the sheriffs are entitled to qualified immunity gets you all the way to a finding as to the private defendants. So if the conclusion was that there's no constitutional violation? So, okay, so I guess the first point I was going to make is if there's just a finding of no clearly established violation, then that's not the same thing as no constitutional violation. But if you find there's no constitutional violation, then you have to evaluate every defendant in a 1983 case on their own terms and the question is whether the private actors were acting reasonably in the Fourth Amendment sense. And all the arguments we've heard about whether the public actors are acting reasonably, all those arguments are about how sheriffs have this special duty. Sheriffs can be sued by the creditor if they don't do this. You know, the order was directed at the sheriffs. If you're just going to say that the private actors are derivative of the sheriffs, then you're basically saying private actors, as long as they're there with the police, are never going to violate the Constitution. And I don't think that's right. Well, why would it be? Go ahead. Go ahead. I mean, you're saying the reason they're subject to liability at all is that they are state actors working under the umbrella of the police. So why shouldn't the reason of this inquiry be the same? So it shouldn't be the same because, you know, the fact that police are subject to, you know, specific duties under state law when the police clothe private actors in private authority, that doesn't make those private actors subject to all those same duties, subject to the same orders or the same state statutes. The private actors, my point is only that it is a completely separate issue that the defendants have never argued or briefed. Okay. And the cleanest path to reversal here, if you disagree with us on qualified immunity, is just say the district court applied the wrong state action test, we reverse and remand and you can let everything go besides that. Thank you so much. Thank you for your argument. Thank you to all counsel. The case is submitted and the court will file a decision in due course."
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