Action under 42 USC § 1983 based on police officers’ participation in an eviction; Fourth Amendment seizure; Qualified immunity; Whether a seizure was “unreasonable” under Cochran v Gilliam; Hensley v Gassman; Revis v Meldrum; Whether plaintiff had a “possessory interest” in the premises; State action; “Active participation” in the eviction; Violation of “clearly established” law

The court affirmed the denial of qualified immunity to defendants-police officers Pittsley and Rennie, concluding that (1) plaintiff-Bender “had a possessory interest in the condo at the time of the eviction[,]” (2) her account supported a finding that they “actively participated in evicting her” without a court order, and (3) case law predating the eviction clearly established that the alleged conduct “was unreasonable in violation of the Fourth Amendment.” Bender was the primary caregiver for her friend (C) and lived in C’s condo with her. After C died, Bender remained in the condo for about a month while she took care of her own health concerns. At this time, the condo was owned by C’s living trust, of which Bender was trustee. C’s nephew (S) went to the condo with the officers to evict her. S had shown them a superseded version of C’s will to support the eviction. This version mentioned S as a beneficiary but did not refer to the condo. There was no court order for the eviction. According to Bender, Pittsley and Rennie gave her 10 minutes to leave, “threatened to arrest her, pushed her out the door, and took her key.” She sued, alleging that “their active participation in the eviction constituted an unreasonable seizure in violation of the Fourth Amendment.” They moved for summary disposition based on qualified immunity. The district court denied their motion. On appeal, after concluding that it had jurisdiction, the court held that Bender had a possessory interest in the condo under Ohio law. Further, it found that the officers “actively participated” in the eviction, concluding that their conduct “was akin to the actions in Cochran.” According to Bender’s deposition testimony, they “‘pushed their way into the condo’ without Bender’s consent and told her that she ‘ha[d] ten minutes’ to gather her belongings and exit the condo. Rennie threatened to arrest Bender multiple times during the eviction, as in Cochran.” She also testified that Pittsley “‘took [her] key.’” The court found that ultimately, “the Officers ‘threw [Bender] out of the condo,’ ‘pushed [her] out the door,’ and left the condo only after doing so.” It held that Hensley and Cochran clearly showed that their “conduct was unreasonable” given the lack of a court order and no assertion of exigent circumstances. Additionally, case law predating the eviction (Cochran and Hensley) “made it abundantly clear that the Officers violated Bender’s Fourth Amendment rights.”