## Facts

- Diana Marcus borrowed money from Carl McCollum and provided an automobile title as security.
- McCollum went to the Marcus home with a tow-truck operator to repossess a vehicle and alerted an on-duty police officer (Mason Wilson) parked nearby.
- McCollum lacked the physical title but had a paper listing a VIN matching a 1978 Pontiac Firebird in the Marcuses’ driveway.
- The Marcuses asserted the Pontiac belonged to Mike Marcus and was not the loan collateral; they told McCollum he had title to a different car.
- Diana Marcus and her minor son Nicholas confronted McCollum and attempted multiple times to unhook the vehicle from the wrecker.
- Wilson approached and called for backup; three additional officers (Thomas, Powell, and Borcherding) arrived. The record disputed whether Wilson intervened on his own or after McCollum signaled for him.
- The officers did not seek additional documentation of McCollum’s ownership or lien interest beyond the VIN paper, despite the Marcuses’ objections.
- Plaintiffs alleged Wilson used physical force against Nicholas and that officers threatened arrest if the Marcuses interfered, while stating the dispute was “civil” and instructing them to pursue court remedies.
- Officers remained on scene until the vehicle was towed away.

## Issues

1. Whether officers’ conduct during a private self-help repossession constituted “state action” under 42 U.S.C. § 1983.
2. Whether, on summary judgment, the officers were entitled to qualified immunity on alleged Fourth Amendment unreasonable seizure and Fourteenth Amendment procedural due process violations.

## Decision

- The Tenth Circuit reversed the summary judgment for the officers and remanded.
- The court held that disputed material facts could support a finding that officers affirmatively aided the repossession, which can constitute state action under § 1983.
- Because the same disputed facts bore on whether constitutional violations occurred and whether the rights were clearly established, qualified immunity could not be granted at the summary-judgment stage.

## Legal Principles

- Police involvement in a private repossession may constitute state action when officers affirmatively intervene to facilitate the repossession (e.g., threatening arrest or commanding the debtor to stop resisting).
- Mere police presence to keep the peace, without affirmative assistance, does not convert a private repossession into state action.
- Courts should avoid “curbside courtroom” determinations of competing property claims during repossession disputes; the constitutional inquiry focuses on whether officers used official authority to assist the seizure.
- Qualified immunity is unavailable on summary judgment when genuine disputes of material fact affect (1) whether a constitutional right was violated and (2) whether the right was clearly established.
- If officers’ affirmative assistance is proven, their conduct may amount to a Fourth Amendment seizure under color of law and may implicate Fourteenth Amendment procedural due process where property is taken without adequate process.

## Conclusion

The court held that a jury could find the officers went beyond peacekeeping and used official authority to help complete a private repossession; material factual disputes therefore required reversal of summary judgment and precluded qualified immunity at that stage.


Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004)