Mary Ann Bender v. Village of Mariemont, Ohio

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0187p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARY ANN BENDER,
Plaintiff-Appellee,
v.
VILLAGE OF MARIEMONT, OHIO,
Defendant,
NICHOLAS PITTSLEY and PAUL RENNIE, Police Officers
for the Village of Mariemont, Ohio,
Defendants-Appellants.
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No. 25-3540
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:23-cv-00051—Douglas Russell Cole, District Judge.
Argued: March 19, 2026
Decided and Filed: June 30, 2026
Before: MOORE, THAPAR, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Katherine L. Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS,
Mason, Ohio, for Appellants. Stephen E. Imm, FINNEY LAW FIRM, LLC, Cincinnati, Ohio,
for Appellee. ON BRIEF: Katherine L. Barbiere, SCHROEDER, MAUNDRELL, BARBIERE
& POWERS, Mason, Ohio, for Appellants. Stephen E. Imm, Matthew S. Okiishi, FINNEY
LAW FIRM, LLC, Cincinnati, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court in which MATHIS, J., concurred.
THAPAR, J. (pp. 29–32), delivered a separate dissenting opinion.
>

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_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Mary Ann Bender was the primary caregiver
for her friend Rita Cole. While caring for Cole, Bender resided in Cole’s condominium (“the
condo”) with her. After Cole died, ownership of the condo transferred to Cole’s living trust, of
which Bender became trustee. Bender remained in the condo for approximately one month after
Cole’s death because Bender was ill and needed time to remove belongings that she had moved
into the condo while caring for Cole. Cole’s nephew, Kevin Surette, contacted the police and
asked them to accompany him to the condo to evict Bender. Kevin Surette showed Officers
Nicholas Pittsley and Paul Rennie (“the Officers”) a copy of a superseded version of Cole’s will,
which the Officers took only a cursory glance at, that named Kevin Surette as a beneficiary but
did not mention the condo. The Officers accompanied Kevin Surette to the condo and, according
to Bender, told Bender that she had ten minutes to leave the condo, threatened to arrest her,
pushed her out the door, and took her key. Bender sued the Officers, among others, alleging that
their active participation in the eviction constituted an unreasonable seizure in violation of the
Fourth Amendment. The Officers moved for summary judgment, arguing that they are entitled to
qualified immunity. The district court denied the Officers’ motion, and the Officers now appeal
the district court’s order. For the reasons that follow, we AFFIRM the district court’s order
denying summary judgment.
I. BACKGROUND
A. Facts
Mary Ann Bender and Rita Cole were “best friend[s] for over 20 years.” R. 27 (Bender
Dep. at 21:18–23) (Page ID #306). For the last five years of Cole’s life, Bender was her primary
caregiver because Bender “was the only one willing to” care for her. Id. at 22:20–22 (Page ID
#307). During that time, Bender moved into Cole’s condo in Cincinnati because Cole “couldn’t
be left alone.” Id. at 26:4–8 (Page ID #311). Bender also owned her own home, and she and
Cole “went back and forth” between Bender’s home and the condo before Cole became unable to

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do so, but Bender and Cole always spent nights at Cole’s condo. Id. at 26:12–25 (Page ID #311).
Bender moved clothing and other belongings into the condo to make it easier to care for Cole
while residing there. Id. at 33:4–12 (Page ID #318). Cole died on April 8, 2022. Id. at 78:3–5
(Page ID #363).
Before Cole died, she executed several estate-planning documents. Cole created a living
trust in 2013, R. 41-11 (Living Trust Agreement at 1) (Page ID #1163), and amended it in 2014,
R. 41-11 (First Am. to Living Trust at 2) (Page ID #1176). The amendment named Kevin Surette
as one of several trust beneficiaries and Robert Surette as trustee upon Cole’s death. Id. at 1
(Page ID #1175). Bender was named as the successor trustee, id., and in 2016 Robert Surette
indicated that he was unable to serve as trustee and “request[ed] that Mary Bender . . . serve in
[his] place,” R. 41-11 (Trustee Resignation) (Page ID #1188). Upon Cole’s death, the condo was
to become property of the trust. R. 41-11 (Transfer on Death Designation Aff.) (Page ID #1177).
Cole also executed two wills. First, Cole signed a will in 2015 that named R.J. Connelly III as
executor and Kevin Surette as one of several beneficiaries. R. 41-11 (2015 Will at 1–2, 8) (Page
ID #1179–80, 1186). In 2021 Cole executed a will that “revok[ed] all other . . . Wills” and
named only Karen Nelligan and Denise Surette as beneficiaries. R. 41-11 (2021 Will at 1–2)
(Page ID #1189–90).
Based on those estate documents, when Cole died on April 8, 2022, ownership of the
condo transferred to the trust and Bender became trustee. Following Cole’s death and funeral,
Bender continued to live at the condo. R. 27 (Bender Dep. at 78:9–16) (Page ID #363). Denise
Surette, who is Cole’s niece and Kevin Surette’s sister, told Bender that she could reside in the
condo temporarily. Id. at 82:21–83:10 (Page ID #367–68). Denise Surette was the executor and
a beneficiary of Cole’s 2021 will, but she was not a trust beneficiary. R. 41-11 (First Am. to
Living Trust at 1) (Page ID #1175); R. 41-11 (2021 Will at 1) (Page ID #1189). Bender planned
to vacate the condo by the end of May because “that’s the amount of time [she] thought it would
take [her] to get [her] things out” and she was “ill and was getting back on her feet.” R. 27
(Bender Dep. at 83:14–25, 93:11–19) (Page ID #368, 378). Bender was seventy-six years old at
the time.

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On May 6, 2022, Kevin Surette, Cole’s nephew, was informed by his cousins that Bender
was at the condo “removing items and destroying documents.” R. 33 (Kevin Surette Dep. at
51:22–25) (Page ID #724). It is unclear how his cousins would have known this because they
were “out of state.” Id. at 70:24–71:16 (Page ID #743–44).1 Kevin Surette went to the police
station and asked Officers Pittsley and Rennie to accompany him to the condo because he was
“concerned that” Bender “was still on the property” and wanted her “to leave.” R. 32 (Rennie
Dep. at 25:3–16, 30:9–17) (Page ID #635, 640); see also R. 33 (Kevin Surette Dep. at 50:19–
51:5) (Page ID #723–24). Kevin Surette showed the Officers Cole’s 2015 will, R. 32 (Rennie
Dep. at 24:12–19) (Page ID #634); R. 31 (Pittsley Dep. at 56:22–57:6) (Page ID #566–67),
which listed him as a beneficiary, R. 41-11 (2015 Will at 2) (Page ID #1180).2 The Officers only
glanced at the title of the will and saw that Kevin Surette’s name was in the will; they did not
“inspect” or fully read the will. R. 32 (Rennie Dep. at 24:14–19) (Page ID #634); R. 31 (Pittsley
Dep. at 56:22–57:25) (Page ID #566–67). We know that the Officers did not even read the first
page of the will because Kevin Surette told the Officers that he was the executor of the will and
the Officers accepted that as true, R. 31 (Pittsley Dep. at 58:1–9) (Page ID #568); R. 32 (Rennie
Dep. at 24:14–19) (Page ID #634); R. 27-4 (Incident Report at 2) (Page ID #490), but on the
very first page of the will, R.J. Connelly III was named as the executor and Kevin Surette was
named only as a beneficiary on the second page, R. 41-11 (2015 Will at 1–2) (Page ID #1179–
80). Kevin Surette did not present the Officers with a court order or other documentation to
support his claim to the condo. R. 32 (Rennie Dep. at 29:14–18, 52:14–19) (Page ID #639, 662);
R. 31 (Pittsley Dep. at 53:7–13, 59:19–25) (Page ID #563, 569). Prior to May 6, Kevin Surette
had not contacted Bender about the condo, let alone taken any legal action. R. 33 (Kevin Surette
Dep. at 51:6–14, 54:15–22) (Page ID #724, 727).
1From this point on, what occurred is disputed by the parties. This appeal comes to us in an interlocutory
posture following the denial of summary judgment, so we must view the facts in the light most favorable to Bender
as the nonmoving party. Therefore, we describe what transpired based on the evidence viewed in Bender’s favor,
even though we acknowledge that the Officers dispute her account. See Anderson-Santos v. Kent County, 94 F.4th
550, 554 (6th Cir. 2024); Cochran v. Gilliam, 656 F.3d 300, 305–06 (6th Cir. 2011).
2The record is not entirely clear as to which will Kevin Surette showed the Officers, but he was not named
in the 2021 will—so a reasonable inference is that he showed the Officers the 2015 will.

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The Officers accompanied Kevin Surette to the condo and met him in the condo
building’s parking lot. R. 32 (Rennie Dep. at 31:15–18) (Page ID #641). They walked to the
door of the condo together and knocked. R. 33 (Kevin Surette Dep. at 53:1–4) (Page ID #726).
The Officers stood in front of Kevin Surette, and when Bender answered the door, the Officers
“ask[ed] her why she was in the . . . condo[].” Id. at 53:5–54:14 (Page ID #726–27). The
Officers and Kevin Surette then “pushed their way into the condo,” R. 27 (Bender Dep. at 93:9–
10) (Page ID #378), and the Officers “asked her if she had a right to be there,” R. 33 (Kevin
Surette Dep. at 54:1–5) (Page ID #727). Bender told them that she was staying at the condo
because she was “ill and was getting back on her feet.” R. 27 (Bender Dep. at 93:11–19) (Page
ID #378). She also asked the Officers to see a warrant, told them that they needed a warrant to
enter the condo, asked to see the will that Kevin Surette had shown the Officers, told them that
she “kn[e]w [Cole’s] last will was” executed in 2021, and told them that she “had the only true
will.” Id. at 101:8–102:1 (Page ID #386–87). The Officers refused to show Bender the will that
Kevin Surette presented to them. Id.
Once inside the condo, one of the Officers asked Kevin Surette, “when did you want her
out of here, Kevin? And Kevin said, today.” Id. at 94:16–23 (Page ID #379). The Officer then
told Bender that she “ha[d] ten minutes” to gather her belongings and leave the condo. Id.
Bender does not recall if the Officers physically touched her, but she testified that they were
“pushing [her]” to exit the condo. Id. at 99:10–25 (Page ID #384). Rennie told Bender “at least
ten times” that she “was going to jail” and to take photos of her personal belongings in the
condo. Id. at 102:9–19, 106:1–25 (Page ID #387, 391). Ultimately, Pittsley issued Bender a
citation. Id. at 108:23–109:2 (Page ID #393–94); R. 31 (Pittsley Dep. at 90:5–13) (Page ID
#600); R. 27-4 (Incident Report at 2) (Page ID #490).
Pittsley told Bender to “[g]ive [him] [her] key” to the condo and “took [her] key.” R. 27
(Bender Dep. at 122:20–123:14, 125:19–126:1) (Page ID #407–08, 410–11). The Officers then
“pushed [her] out the door and harassed [her] about going to jail.” Id. at 122:20–25, 124:18–22
(Page ID #407, 409). The Officers left the condo only after they removed Bender, and Bender
went to a neighbor’s condo in the same complex because she was “too shaken” to drive to her
home immediately. Id. at 107:6–10 (Page ID #392). The police report states that the “Officers

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made contact with Ms. Bender inside of the residence and advised her that Mr. Surette was an
executor of Ms. Cole’s will, and was acting on behalf of himself and others listed in the will, and
requested that Ms. Bender leave the residence and not return.” R. 27-4 (Incident Report at 2)
(Page ID #490). Rennie’s daily activity log stated that he “assisted . . . with removing Mary
Bender from the residence.” R. 41-12 (Rennie Activity Log at 1) (Page ID #1229).
B. Procedural History
Bender sued Kevin Surette, Pittsley, Rennie, Chief of Police and Fire Richard Hines, and
the Village of Mariemont. R. 1 (Compl.) (Page ID #1). She alleged, as relevant here, that
Pittsley and Rennie violated the Fourth Amendment by evicting her from the condo. Id. ¶¶ 35–
41 (Page ID #5–6). Following discovery, Pittsley, Rennie, Hines, and the Village of Mariemont
moved for summary judgment. R. 35 (Mot. for Summ. J.) (Page ID #923). They argued that
Rennie and Pittsley were entitled to qualified immunity, Bender did not have a viable Monell
claim against the Village of Mariemont, and Bender’s failure-to-train or failure-to-supervise
claim against Hines failed. Id. at 8–18 (Page ID #930–40). The district court granted the motion
as to Hines and the Village of Mariemont but denied the motion as to Pittsley and Rennie.
Bender v. Village of Mariemont, No. 1:23-CV-51, 2025 WL 1735764, at *13 (S.D. Ohio June 23,
2025).
The district court concluded that Bender held legal title to the condo as trustee, so
“Bender’s residing in the condo after Cole’s death could perhaps be understood as her
undertaking an unwritten lease agreement with herself, serving as both lessor (in her capacity as
trustee) and lessee (in her personal capacity).” Id. at *6–7. Even though that transaction may
have constituted self-dealing by Bender as trustee, which Ohio law generally prohibits, such self-
dealing would have made the transaction only voidable, not void. Id. Because Kevin Surette
had taken no action to void the transaction, Bender had a possessory interest in the condo. Id.
The district court then concluded that, “[o]n Bender’s telling” of what occurred in the
condo, the Officers “t[ook] an active role in the . . . eviction” and were not there merely to keep
the peace. Id. at *8 (quoting Middaugh v. City of Three Rivers, 684 F. App’x 522, 527 (6th Cir.
2017)). The district court highlighted that “Officers Rennie and Pittsley: (1) asked [Kevin]

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Surette when he wanted Bender out of the condo; (2) ‘forced’ her out when [Kevin] Surette
answered ‘today’; (3) and threatened her ‘at least ten times’ with jail time if she didn’t comply.”
Id. The seizure was unreasonable under Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011), where
we held that the deputies violated the Fourth Amendment despite “far less plaintiff-friendly . . .
facts.” Id. In Cochran, the deputies “were prompted to act by a facially valid judgment of
eviction,” which “they closely read.” Id. “Moreover, the Cochran defendants took the further
step of conferring with an attorney to confirm their authority to seize the tenant’s personal
property.” Id. In contrast to Cochran, “[t]he Officers here made no such inquiry [into Kevin
Surette’s authority to evict Bender], admitting to giving [Kevin] Surette’s purported ‘estate
documents’ at best a cursory review,” and made no “further inquiry” into Kevin Surette’s
authority. Id. The district court concluded that “if the Cochran defendants’ actions didn’t pass
muster under the Fourth Amendment’s ‘reasonableness’ standard, the Officers’ actions here,
under Bender’s version, do not either.” Id.
Finally, again relying on Cochran, the district court held that the right was clearly
established. Id. at *9. The district court noted that Cochran made clear that “where a person’s
claim to have a right to evict someone from a residence rests exclusively on the purported effect
of legal documents (the eviction judgment in Cochran or [an] estate document here), the Officers
must at least (1) closely read the document purporting to vest them with authority to seize the
property at issue, and (2) enlist the aid of an attorney, at the very minimum, to confirm that their
understanding of the document is correct.” Id. Pittsley and Rennie timely filed a notice of
appeal. R. 47 (Notice of Appeal) (Page ID #1320).
II. JURISDICTION
We have jurisdiction to review a district court’s denial of qualified immunity at summary
judgment under the collateral-order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985).
Our “jurisdiction regarding [such] orders . . . , however, is narrow.” Harrison v. Ash, 539 F.3d
510, 517 (6th Cir. 2008). Review “is limited to ‘only purely legal questions.’” Gordon v.
Bierenga, 20 F.4th 1077, 1081 (6th Cir. 2021) (quoting McGrew v. Duncan, 937 F.3d 664, 669
(6th Cir. 2019)). A defendant seeking interlocutory review “may not appeal a district court’s
summary judgment order insofar as that order determines whether or not the pretrial record sets

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forth a ‘genuine’ issue of material fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995).
“[T]o the extent that the denial of qualified immunity is based on a factual dispute, [it] falls
outside of [our] narrow jurisdiction.” Harrison, 539 F.3d at 517. “This limitation ensures that”
our review “remains confined to the denials of qualified immunity and does not bleed over into a
review of district courts’ evaluation of genuine disputes of material fact.” Brown v. Chapman,
814 F.3d 436, 444 (6th Cir. 2016).
Where a denial of qualified immunity is based on a factual dispute, a defendant may
nonetheless “invoke [our] jurisdiction by conceding the plaintiff’s version of the facts.”
Anderson-Santos v. Kent County, 94 F.4th 550, 554 (6th Cir. 2024). A defendant’s failure to
concede the plaintiff’s version of the facts generally deprives us of jurisdiction. Sabo v. City of
Mentor, 657 F.3d 332, 336 (6th Cir. 2011). If, however, a defendant disputes only facts that are
minor and “immaterial to the legal issues raised by the appeal,” we retain jurisdiction. Gillispie
v. Miami Township, 18 F.4th 909, 917 (6th Cir. 2021) (quoting Adams v. Blount County, 946 F.3d
940, 951 (6th Cir. 2020)).
Here, the Officers generally concede Bender’s version of the facts in their arguments,
even though they omit facts that are favorable to Bender. Despite this, Bender points to several
“facts” that the Officers fail to concede to argue that we lack jurisdiction. Appellee Br. at 8–9.
But the contested facts that Bender points to are either immaterial or are questions of law, not
fact. For example, Bender argues that the Officers fail to concede that she had a possessory
interest in the condo. Id. at 8. But here that is a question of law, not fact. Next, Bender points
out that the Officers describe the 2015 will Kevin Surette presented to the Officers as “valid.”
Id. at 9; Appellants Br. at 21. But that is immaterial, because even if the will were valid, it would
not absolve the Officers of potential liability, for the reasons detailed below in Part III.B.3. The
same is true of Bender’s contention that the Officers continue to argue that they believed that
they went to the condo to maintain the peace. Appellee Br. at 8–9. The Officers’ subjective
beliefs that they went to the property to maintain the peace are immaterial to whether their
conduct violated the Fourth Amendment, because the Fourth Amendment analysis turns on the
objective circumstances at the time of the seizure, not on subjective intentions or opinions.
Hensley v. Gassman, 693 F.3d 681, 693 (6th Cir. 2012); see generally Torres v. Madrid, 592 U.S.

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306, 317 (2021); Aldini v. Johnson, 609 F.3d 858, 865 (6th Cir. 2010). In the end, we have
jurisdiction because the few facts that the Officers dispute are immaterial.
III. ANALYSIS
A. Legal Framework
We review de novo “the denial of summary judgment on grounds of qualified immunity.”
Cochran, 656 F.3d at 305 (quoting McCloud v. Testa, 97 F.3d 1536, 1541 (6th Cir. 1996)).
Officers sued in their individual capacities are “entitled to qualified immunity if ‘a reasonable
officer could have believed [their actions] to be lawful, in light of clearly established law and the
information the . . . officer[] possessed.’” Hensley, 693 F.3d at 687 (quoting Anderson v.
Creighton, 483 U.S. 635, 641 (1987)). To determine whether officers are entitled to qualified
immunity, we engage in a two-step inquiry. Howell v. McCormick, 148 F.4th 834, 843 (6th Cir.
2025). “At step one,” id., we determine “whether the facts, viewed in the light most favorable to
the plaintiff, show a violation of a constitutional right,” Cochran, 656 F.3d at 306. “At step two”
we must determine whether it was “clearly established” at the time of the violation that the
defendant’s conduct violated the Constitution. Howell, 148 F.4th at 843. We “ha[ve] discretion
to decide . . . the order of the analysis.” Hensley, 693 F.3d at 687. We begin with step one here.
B. Step One: Constitutional Violation
The Fourth Amendment prohibits unreasonable seizures. Hensley, 693 F.3d at 687–88.
To show that the Officers’ participation in an otherwise private eviction constituted an
unreasonable seizure in violation of the Fourth Amendment, Bender must show three things.
First, there must have been “some meaningful interference with [her] possessory interests in th[e
condo].” Id. at 688 (quoting Soldal v. Cook County, 506 U.S. 56, 61 (1992)). Second, the
Officers must have actively participated in evicting her from the condo or chilled her right to
object, because “a police officer’s presence during a [private] repossession solely to keep the
peace . . . is alone insufficient to convert the repossession into state action.” Id. at 689. Third,
the seizure must have been unreasonable, id. at 692, which is “particularly” likely “when there is
neither a specific court order permitting the officers’ conduct nor any exigent circumstance,”
Cochran, 656 F.3d at 308. We analyze each of these factors in turn.

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1. Possessory Interest3
We look to Ohio law to determine whether Bender has a “[p]ossessory interest[]” in the
condo. Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 141 F.4th 796, 810 (6th Cir.
2025).4 Under Ohio law, Bender held legal title to the condo as trustee of Cole’s living trust.
Goralsky v. Taylor, 571 N.E.2d 720, 722 (Ohio 1991). Bender’s authority as trustee was
governed by the terms of the trust and background principles of Ohio law. In re Binder’s Est., 27
N.E.2d 939, 949 (Ohio 1940); Biddulph v. DeLorenzo, No. 83808, 2004 WL 1902725, at *3
(Ohio Ct. App. Aug. 26, 2004). The trust documents provided that Bender, as trustee, could
“exercise all such rights and privileges as could be done, taken, or exercised by an owner of the
Trust property.” R. 41-11 (Rita M. Cole Living Trust Agreement at 4) (Page ID #1166). Bender
was also permitted “[t]o sell, convey, exchange, convert, improve, repair, manage, operate, and
control Trust property” and “[t]o lease” the property. Id. at 3 (Page ID #1165). Therefore, under
the terms of the trust, Bender could occupy the condo or lease it to herself in her individual
capacity.
Background Ohio law, however, prohibits trustees from self-dealing with trust property
except as “authorized by the terms of the trust.” Ohio Rev. Code Ann. § 5808.02(B). Critically,
self-dealing acts are “voidable by a [trust] beneficiary.” Id. (emphasis added). “A voidable act
takes effect as intended, and continues to be effectual . . . until it is set aside or nullified as to all
or some part of the persons or things which were affected by it.” In re Est. of Gavrilovich, No.
10718, 1982 WL 2808, at *2 (Ohio Ct. App. Oct. 27, 1982) (per curiam) (citation modified). In
contrast, a “void” act is treated “as if it never existed.” 1 Williston on Contracts § 1:20 (4th ed.).
Voidable transactions must be rescinded by a successor trustee or timely challenged in court by
the trust beneficiaries in order to invalidate or set aside the transaction. Ohio Rev. Code Ann.
§ 5808.02(B)(3); Cleveland Tr. Co. v. Eaton, 256 N.E.2d 198, 207 (Ohio 1970). Absent such
3The parties do not dispute that, if Bender had a possessory interest in the condo, evicting her meaningfully
interfered with that interest.
4There is debate as to whether looking to state law is the correct approach. See, e.g., Danielle D’Onfro &
Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910 (2023). We have already adopted this
state-law approach, however, so we adhere to it here. Additionally, this case does not present the complexities that
could arise if the state attempted to “sidestep” constitutional protections “by disavowing traditional property
interests long recognized under state law.” Phillips v. Wash. Legal Found., 524 U.S. 156, 167 (1998).

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action, the transaction remains in force. Kevin Surette and the other trust beneficiaries did not
challenge Bender’s residence in the condo before the May 6 eviction. See R. 33 (Kevin Surette
Dep. at 51:6–14, 54:15–22) (Page ID #724, 727). Therefore, even assuming that Bender’s use of
the condo was not authorized by the terms of the trust and was prohibited self-dealing, Bender
had a voidable property interest in the condo at the time of the eviction in addition to legal title.
A voidable interest in property, even absent legal title, creates a possessory interest that is
cognizable under the Fourth Amendment. Sanders v. City of San Diego, 93 F.3d 1423, 1427 n.3
(9th Cir. 1996); cf. United States v. Thomas, 65 F.4th 922, 924 (7th Cir. 2023).5 And, despite the
Officers’ argument to the contrary, Appellants Br. at 13, Bender’s possessory interest in the
condo is protected by the Fourth Amendment even though Bender also owned her own home
where she received mail. Mockeridge v. Harvey, 149 F.4th 826, 834 (6th Cir. 2025) (“A person
does not lose Fourth Amendment protection by not continuously occupying a house or by
owning multiple houses. . . . [T]he Fourth Amendment [does not] ‘limit its protection to a single
house or home.’” (quoting Roberson v. United States, 165 F.2d 752, 754 (6th Cir. 1948))). If “[a]
hotel room, in the eyes of the Fourth Amendment, may become a person’s ‘house,’” Lanza v.
New York, 370 U.S. 139, 143 (1962), so may the condo where Bender had resided on most nights
for years. We hold that Bender had a possessory interest in the condo at the time of the eviction.
2. Active Participation
Next, Bender must show that the Officers actively participated in evicting her or chilled
her ability to object to the eviction. “[A] police officer’s presence during a repossession solely to
keep the peace, i.e., to prevent a violent confrontation . . . is alone insufficient to convert the
repossession into state action.” Hensley, 693 F.3d at 689. So, for example, an officer who
merely accompanies a private party, remains in their parked car around the corner while the third
5In United States v. Johnson, the Tenth Circuit held that there was no reasonable expectation of privacy in
a storage unit when the defendant “fraudulent[ly] and criminal[ly]” entered into the lease using a stolen identity,
which resulted in the contract being voidable under state law. 584 F.3d 995, 1001–04 (10th Cir. 2009). But
Johnson is distinguishable on at least three grounds. First, there are no allegations that Bender engaged in
fraudulent or criminal activity. Second, the question here is not whether Bender had a reasonable expectation of
privacy—it is whether she had a possessory interest in the condo. And finally, Johnson involved a storage unit, not
a “residential premises” like the condo, and “courts have distinguished between searches of residential premises,
searches of business premises, searches of vehicles, and searches of other places and effects.” Id. at 1004 n.9.

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party repossesses the property, and does not encourage or direct the repossession in any way does
not “convert the repossession into state action.” United States v. Coleman, 628 F.2d 961, 963–64
(6th Cir. 1980). “[W]hen officers take a more active role in the repossession,” such as by
“active[ly] interven[ing] [on behalf of] and assist[ing]” the private party, it converts the
repossession into state action that can give rise to liability under § 1983. Hensley, 693 F.3d at
688–89. “Even without active participation, . . . an officer’s conduct can facilitate a repossession
if it chills the plaintiff’s right to object.” Id. at 689. Officers’ conduct chills the plaintiff’s right
to object when their “arrival and close association with the [private party] during the
repossession . . . signal[s] to the [plaintiff] that the weight of the state is behind the repossession
and that the [plaintiff] should not interfere by objecting.” Id. at 690.
A few cases are illustrative of when an officer’s conduct converts a private repossession
into state action. In Cochran, Cochran’s landlords had obtained a valid judgment of eviction
from a court and a valid warrant for possession that allowed the sheriff to evict Cochran from the
home and return it to the landlords. 656 F.3d at 303. The landlords arrived at the home with the
deputies, and after carefully reviewing the warrant for possession, the deputies “realized that it
was silent as to Cochran’s personal property located at the premises.” Id. So they told the
landlords to “secure Cochran’s personal property” so that Cochran could “take it following the
eviction” because Cochran was not currently at the home. Id. The landlords informed the
deputies “that the Lincoln County Attorney had told [them] that Cochran’s personal property
could be sold to recover [their] losses.” Id. The deputies “then contacted the county attorney”
who told them “that [the landlords] had a ‘right to sell the property.’” Id. The landlords then
“removed Cochran’s personal property from the residence.” Id. At that point, Cochran arrived at
the scene, and the deputies “threatened to restrain and/or arrest anyone who attempted to
interfere with the [landlords’] procurement of Cochran’s personal property” despite Cochran’s
protests and attempts to stop the landlords from taking the property. Id. at 304. The deputies
were present for the removal of Cochran’s property, they personally carried out and loaded some
of the property into the landlords’ truck, and one of the deputies purchased a TV from the
landlords. Id. at 304–05. We held that those actions were sufficient to show that the deputies
actively participated in the repossession of Cochran’s property.

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In Middaugh, a third party contacted the police regarding repossessing a car. 684 F.
App’x at 524. She told the officers that she was divorcing her husband and “that her attorney
had advised her to get the [car] titled in her name and to ask the police to provide security while
she retrieved the vehicle from” the house of the plaintiff6 (her brother-in-law). Id. at 525. The
third party showed the officers her key to the car and “a copy of a document entitled ‘Application
for Michigan Vehicle Title’ that she had obtained from the Secretary of State earlier that day.”
Id. One officer drove the third party to the plaintiff’s home and parked his patrol car between the
house and the car. Id. The other officer parked nearby. Id. The third party then got into the car
and drove it away. The plaintiff was home and “noticed the patrol cars pulling up, but because of
the way the patrol cars were parked [the plaintiff] could not see anyone getting into the [car]”
and did not exit the home while the officers were there. Id. We held that the officers participated
in the seizure of the plaintiff’s car because they drove the third party to the property and
positioned their car, and themselves, between the plaintiff and car so that they blocked the
plaintiff’s view of the car and third party. Id. at 528.
The Officers’ conduct here is far more indicative of state action than the conduct in
Middaugh and is akin to the actions in Cochran. As in Cochran, the Officers accompanied
Kevin Surette to the condo. R. 32 (Rennie Dep. at 31:15–18) (Page ID #641). Once there, the
Officers “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. R. 27 (Bender Dep. at 93:9–10, 94:16–
23) (Page ID #378–79). Rennie threatened to arrest Bender multiple times during the eviction,
as in Cochran. Id. at 102:9–19, 106:1–25 (Page ID #387, 391). Pittsley told Bender to “[g]ive
[him] [her] key” to the condo and “took [her] key.” Id. at 122:20–123:14, 125:19–126:1 (Page
ID #407–08, 410–11). Ultimately the Officers “threw [Bender] out of the condo,” “pushed [her]
out the door,” and left the condo only after doing so. Id. at 122:20–25, 124:18–22, 150:2–20
(Page ID #407, 409, 435).
In contrast with the facts here, the officers in Middaugh merely drove the third party to
the premises and positioned themselves to block the plaintiff’s view of the car and third party.
6There were multiple plaintiffs in Middaugh, but for simplicity, we refer to only one.

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684 F. App’x at 528. And even though the Officers here did not carry any of the property out of
the condo as they did in Cochran, Bender claims that her eviction constituted a seizure, not that
her personal property was seized. The Officers personally threw Bender out of the condo and
took her key; thus, as a direct result of their actions, she could not access the property and was
deprived of her possessory interest. That is analogous to the deputies in Cochran carrying the
plaintiff’s personal property out of the home, which likewise directly deprived Cochran of his
possessory interest. On Bender’s account of what occurred, she has easily shown that the
Officers actively participated in evicting her and thereby converted the eviction into state action.7
Our sibling circuits’ cases addressing whether officers engaged in state action in the
context of private repossession further support our conclusion that Bender has demonstrated that
the Officers actively participated in the seizure. In Harvey v. Plains Township Police
Department, the Third Circuit held that an officer engaged in state action in a repossession when
the officer directed the landlord to open the door to the apartment that contained the property at
issue. 421 F.3d 185, 190–91 (3d Cir. 2005). And the Ninth Circuit in Harris v. City of Roseburg,
held that an officer actively participated in a repossession when the officer positioned himself
between the plaintiff and the property, told the plaintiff to move away from the property, and told
the plaintiff that if he interfered, he would be arrested. 664 F.2d 1121, 1127 (9th Cir. 1981); see
also Abbott v. Latshaw, 164 F.3d 141, 147 (3d Cir. 1998) (holding that a jury could find an
officer engaged in state action when he “advised [the third party] that she had a right to
immediate possession of the” property, “ignored . . . ardent protest [against] the seizure, and
threatened to arrest [the plaintiff’s attorney] if he did not move his car to make way for” the third
party to seize the property); Marcus v. McCollum, 394 F.3d 813, 821–23 (10th Cir. 2004)
(holding that a jury could find officers engaged in state action when the plaintiffs objected to the
7The Officers argue that Bender did not “attribute any comments or activity to Pittsley while in the
residence.” Appellants Br. at 14–15. The Officers did not raise this argument below, so it is forfeited. R. 35 (Mot.
for Summ. J.) (Page ID #923–43); Fam. Serv. Ass’n ex rel. Coil v. Wells Township, 783 F.3d 600, 605 (6th Cir.
2015). And Bender did attribute specific conduct to Pittsley. Bender testified that both Officers pushed their way
into the condo and “pushed” her out the door before they left the condo, that Pittsley took and retained her key to the
condo, and that Pittsley cited her for disorderly conduct. R. 27 (Bender Dep. at 108:23–109:2) (Page ID #393–94);
R. 31 (Pittsley Dep. at 90:5–13) (Page ID #600); R. 27-4 (Incident Report at 2) (Page ID #490). Therefore, Pittsley
was personally involved in the seizure, not merely present at the scene. See Ghandi v. Police Dep’t of City of
Detroit, 747 F.2d 338, 352 (6th Cir. 1984).

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repossession before the officers arrived and stopped doing so only “after the police intervention”
which included “the officers repeatedly t[elling] [the plaintiffs] to allow [the third party] to take
possession of the automobile and threaten[ing] them with arrest if they continued to resist”);
Price-Cornelison v. Brooks, 524 F.3d 1103, 1106, 1116–18 (10th Cir. 2008) (holding that a jury
could find the officer engaged in state action when the officer, although not present at the scene
of the seizure, informed the plaintiff when she called the police that the third party had a right to
the property and that if the plaintiff went to the property to try to stop the repossession, the
officer “would arrest her”). Some of our sibling circuits have even concluded that a uniformed
officer’s mere arrival with the third party and proximity to them throughout the repossession is
sufficient to create a genuine dispute of material fact as to whether they actively participated in
the seizure. Jones v. Gutschenritter, 909 F.2d 1208, 1212–13 (8th Cir. 1990); see also Booker v.
City of Atlanta, 776 F.2d 272, 274 (11th Cir. 1985) (per curiam) (holding that a jury could find
that an officer engaged in state action when he “arrived with the repossessor” which “gave the
repossession a cachet of legality and had the effect of intimidating [the plaintiff] into not
exercising his right to resist, thus facilitating the repossession”). That is far less than the
Officers’ conduct here, where they told Bender she had ten minutes to leave the condo,
threatened to arrest her, pushed her out the door, and took her key.
3. Reasonableness
Finally, the Officers’ conduct must have been unreasonable to violate the Fourth
Amendment. We have made clear that “the existence of a court order . . . is a game-changer”
“[o]n the issue of reasonableness.” Hensley, 693 F.3d at 692 (citing Soldal, 506 U.S. at 71).
Officers are “particularly” likely to violate the Fourth Amendment “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.” Cochran, 656
F.3d at 308. In the absence of a court order or exigency, we have held that seizures were
unreasonable when the third party had non-official documentation to support their right to
repossess the property and even when officers received advice from the county attorney that the
third party had a right to the property. See Hensley, 693 F.3d at 692; Cochran, 656 F.3d at 308–
09. Additionally, legal process is required to evict someone from a residential property under

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Ohio law even if the person no longer has a right to the property—self-help evictions are not
permitted. See Ohio Rev. Code Ann. §§ 5321.15(A), 2323.07, 5303.03; Gvozdanovic v.
Woodford Corp., 742 N.E.2d 1145, 1159 (Ohio Ct. App. 2000); Witkowski v. Arditi, 702 N.E.2d
1231, 1233 (Ohio Ct. App. 1997); Bank One, Cincinnati v. Wait, 674 N.E.2d 752, 756 (Ohio Ct.
App. 1996); Wallace v. City of Rossford, No. WD-17-061, 2018 WL 3203145, at *6 (Ohio Ct.
App. June 29, 2018).
It is undisputed that the Officers knew that Kevin Surette did not have a court order and
they do not contend that exigent circumstances justified the eviction. Against that backdrop, two
of our cases clearly show that the Officers’ conduct was unreasonable. In Hensley, a third party
contacted the deputies and asked if they would come to the scene while he repossessed the
plaintiff’s car. 693 F.3d at 684. The deputies met the third party and “followed him” to the
plaintiff’s8 residence. Id. The third party “told the [d]eputies that he had a repossession order
and showed them a file containing some documents.” Id. The [d]eputies did not read the
documents,” which were only a private “order from the creditor to [the third party] to repossess
the vehicle,” not a court order. Id. at 684, 694. The third party pulled his tow truck into the
driveway where the car was located, and the plaintiff came to the driveway. Id. at 684. The
plaintiff then “stood between the [car] and the tow truck to prevent [the third party] from
hooking up the [car]” and told the deputies and the third party that “they could not take the
vehicle and had to leave the property” because the car “payments were up to date and the car was
not supposed to be repossessed.” Id. at 685. The deputies “responded that [they] did not care,”
“they were not going to leave[,] and that [the third party] was taking the [car]” and told the
plaintiff “to step out of the way.” Id.
The plaintiff then got into the car while the third party was still attempting to hook it up
to the tow truck. Id. The deputies “ordered” the plaintiff to exit the car, and when the plaintiff
did not comply, the deputies shouted and threatened to break the car’s window. Id. The plaintiff
then began to drive the car away, despite the fact that it was chained to the tow truck, so the car
began “pulling the tow truck” towards the third party who was “on the ground next to the rear
8Hensley involved multiple plaintiffs, but for purposes of simplicity, we refer to only one.

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wheels of the [car].” Id. Once the car was fully hooked up to the tow truck, the deputies “told
[the third party] to pull it out of the driveway and into the road.” After the car “was parked on
the road,” the deputies “ordered [the plaintiff] several times to exit the vehicle” and when she
failed to comply, the deputy “used a hammer to break the passenger-side window” and “pulled
[her] from the car.” Id.
We held in Hensley that if a trier of fact accepted the following facts, they “could
certainly conclude that the seizure was unreasonable”:
the [d]eputies knew that: (1) the repossession was a private civil matter; (2) [the
third party] claimed that he was authorized to repossess the [car]; (3) [the
plaintiff] disputed [the third party’s] authority to take the [car] and gave a specific
reason why the repossession should not occur; and (4) the [d]eputies lacked any
evidence substantiating [the third party’s] claim of authority to repossess the [car].
693 F.3d at 684, 692. We explained that even if the deputies read and relied on the document the
third party had provided, the reliance “would not have been reasonable, because [the document]
was simply an order from the creditor to [the third party] to repossess the vehicle” so it “carried
no more weight than [the third party’s] own word which, in the context of this private
repossession, the [d]eputies could not accept over [the plaintiff’s] competing claim.” Id. at 694.
The deputies in Hensley also took additional actions, such as breaking the car’s window
and “extract[ing] . . . [the plaintiff] from the vehicle after the immediate threat of injury had
passed,” which we described as “manifestly unreasonable.” Id. at 692–93. But prior to
discussing those facts, we had already concluded that if a reasonable trier of fact accepted the
plaintiff’s version of the facts, they “could certainly conclude that the seizure was unreasonable”
based on only the four factors discussed above. Id. at 692. Our discussion of the additional
facts, therefore, was just icing on the cake in further support of our conclusion that the deputies’
conduct was unreasonable.
And, in Cochran we held that deputies committed an unreasonable seizure when they
acted on the basis of a court order that did not cover Cochran’s personal property. The deputies
closely reviewed the court order and became aware of that fact, so the landlords and the deputies
“contacted the county attorney” regarding Cochran’s personal property “and w[ere] told that [the
landlords] had a ‘right to sell the property.’” Cochran, 656 F.3d at 303, 308. We concluded that

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“[i]t [was] not reasonable for the [deputies] to oversee and personally assist the [l]andlords in
taking possession of Cochran’s belongings when there was no apparent legal basis for such
action.” Id. at 309.
The Officers argue that Cochran is distinguishable because the deputies in that case
“knew the property belonged to the tenant.” Appellants Br. at 18. But the county attorney in
Cochran allegedly informed the deputies and the landlords “that the [l]andlords had a right to
sell [Cochran’s personal] property” to “recover some of the losses from the eviction.” Cochran,
656 F.3d at 308–09. The deputies on the scene could have interpreted the attorney’s advice as
meaning that the landlords had a legal right to the seized property. Therefore, even though it was
clear at the time of litigation that the plaintiff owned the property at issue, at the time of the
seizure the deputies in Cochran may well have believed that the parties had competing interests
in the property. And despite that, we still held that the seizure was unreasonable.
Finally, in Revis v. Meldrum, a third party had “obtained a money judgment in
a . . . lawsuit from a . . . court” and “two writs of execution for [the plaintiff’s] real and personal
property . . . to satisfy the judgment.” 489 F.3d 273, 276 (6th Cir. 2007). The deputy sheriff
accompanied the third party to execute the judgment and instructed “private contractors” to seize
the plaintiff’s “personal property and change[] the locks on his residence.” Id. We held that the
seizure was unreasonable in violation of the Fourth Amendment even though the third party had
a state-court judgment of execution for the plaintiff’s property, which the deputy sheriff reviewed
and sought legal advice on from the county attorney, because “under Tennessee law, the writ of
execution for [the plaintiff’s] residence commanded [the deputy sheriff] only to give notice that
the property was subject to sale,” not to evict the plaintiff. Id. at 277, 287. We rejected the
deputy sheriff’s argument that the seizure was reasonable under Soldal, 506 U.S. at 71, because
of the state-court judgment, reasoning that “Soldal simply begs the question of whether the
court’s writ of execution in this case entitled [the deputy sheriff] to evict” the plaintiff under state
law. Id. at 287.
Our sibling circuits have reached similar conclusions. In Hansen v. Cannon, the Seventh
Circuit held that the officers engaged in an unreasonable seizure when a court order allowed a
third party to seize property on one lot owned by the plaintiffs, but did not mention the adjacent

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lot that was also owned by the plaintiff. 122 F. App’x 265, 270–71 (7th Cir. 2004) (Order). The
third party nevertheless seized property from the adjacent lot, despite the plaintiffs’ eventual
protests and the lack of a court order. Id. at 267, 272. The Seventh Circuit held that the seizure
violated the Fourth Amendment because there was no court order for the adjacent lot and there
was evidence that would have alerted the officers that the lots were distinct. Id. at 270–72. In
Marcus, the Tenth Circuit held that the officer committed a seizure in violation of the Fourth
Amendment when he actively participated in the seizure of a car, in violation of state law, based
on only the third party’s claim that he had a right to repossess the car and his document with a
VIN number that matched the VIN on the car over the plaintiff’s objections. 394 F.3d at 816,
823; see also Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 611 (3d Cir. 2011) (holding that
“a reasonable jury could have found that [the officer]” violated the Fourth Amendment when
there was no court order authorizing the seizure and the officer “unreasonably recognized [the
third party’s] documentation—a letter prepared by [the third party’s] attorney purporting to list
all the items which belonged to [the third party]” even though the plaintiff was not there to
contest ownership).
Hensley, Cochran, and Revis establish that the seizure in this case was unreasonable. The
Officers knew that there was no court order covering the relevant property and that the eviction
was a private civil matter, as in Hensley and Cochran. Viewing the facts in the light most
favorable to Bender, as we must, a trier of fact could conclude that reasonable officers would
have understood that ownership of the condo was disputed, as in Hensley. Bender asked to see a
warrant and told the Officers that they needed one to enter the condo. R. 27 (Bender Dep. at
101:8–20) (Page ID #386). That could indicate to reasonable officers that Bender believed she
had a possessory right to the condo, because the average person would generally not demand a
warrant to enter a residence in which they had no interest. Bender also asked to see the will that
Kevin Surette had shown the Officers and told the Officers that she “kn[e]w [Cole’s] last will
was” executed in 2021 and that she “had the only true will.” Id. at 101:16–102:1 (Page ID #386–
87). Those statements could reasonably be interpreted as showing that Bender claimed an
interest in the condo and disputed Kevin Surette’s claim. When viewed together, a trier of fact
could conclude that at the time of the seizure reasonable officers would have known that Bender

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believed and asserted that she had a right to the property and that Kevin Surette did not have any
right to it.
In Hensley, exactly as here, the third party told the officers that he had a right to repossess
the property and private documentation to confirm it, but otherwise the officers “lacked any
evidence substantiating [the third party’s] claim of authority to repossess the” car. 693 F.3d at
692. Here, even though the Officers saw that Kevin Surette’s name was in the will, they
otherwise did not read or inspect the will. R. 32 (Rennie Dep. at 24:14–19) (Page ID #634).
They did not even read the first page of the document to confirm if Kevin Surette was the
executor as he claimed to be, let alone read it thoroughly enough to realize that the will did not
mention the condo at all. Id.; R. 41-11 (2015 Will at 1–9) (Page ID #1179–87). That makes the
Officers’ conduct even more unreasonable than Revis and Cochran—where the deputies
carefully read the court order and sought advice from the county attorney—yet we still held that
those seizures were unreasonable. Additionally, as in Revis, the Officers had no authority under
state law to evict Bender because, as explained above, legal process is required to evict someone
from a residential property under Ohio law—self-help evictions are not permitted. The lack of
legal authority to evict Bender absent legal process contributes to our conclusion that the
Officers’ conduct was unreasonable.
In the end, just like in Hensley, the Officers could not accept Kevin Surette’s claim to the
condo “over [Bender’s] competing claim.” 693 F.3d at 694. The Officers were presented with
sufficient reason to doubt Kevin Surette’s claim to the property—and yet decided to participate
in the seizure anyway. Ultimately, because a reasonable trier of fact could conclude that the
Officers knew there was no court order authorizing the eviction, knew the ownership of the
property was disputed, and did not otherwise investigate Kevin Surette’s claim (or even read the
will), their conduct was unreasonable.
Our holding does not require officers simply to do nothing when presented with a dispute
over who owns the property. Officers may, of course, be present at the scene of the dispute to
keep the peace and take actions “in furtherance of their legitimate peacekeeping function.”
Hensley, 693 F.3d at 692. This is precisely because, as the dissent states, conflict in such
situations is common so officers’ presence can be important to prevent violence. Our holding

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does nothing to disturb this longstanding rule and therefore we do not place officers in some
“Catch-22” where they may be unable to “prevent a tragedy” as the dissent suggests. Had the
Officers here limited their conduct to legitimate peacekeeping, they would not have violated the
Fourth Amendment. But being present to keep the peace is different than actively participating
in the seizure, and here the Officers crossed that line.
In addition to officers’ ability to be on the scene to keep the peace, exigent circumstances
may, of course, justify conduct that otherwise would be unreasonable. For example, if a person
told an officer that someone stole their car and was driving away in it, officers could respond in a
way that is tailored to the scope of the exigency, such as by briefly seizing the car to investigate.
But, in cases where there are no exigent circumstances and officers actively participate in the
seizure, they may not credit one party’s claim to the property over the other’s without making
any effort to confirm that there is a valid legal basis for the eviction.
C. Step Two: Clearly Established
The Officers argue that even if they violated the Fourth Amendment, their conduct did
not violate clearly established law. Appellants Br. at 15–24. “A Government official’s conduct
violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of
[the] right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that
what he is doing violates that right.’” Hodges v. City of Grand Rapids, 139 F.4th 495, 504 (6th
Cir. 2025) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The right cannot be defined
at too high a level of generality, so “general propositions of law are generally (though not
always) insufficient to clearly establish a right.” Rhodes v. Michigan, 10 F.4th 665, 679 (6th Cir.
2021). But “[w]e do not require a case directly on point,” Hodges, 139 F.4th at 504 (quoting al-
Kidd, 563 U.S. at 741), or “on all fours with the instant fact pattern to form the basis of a clearly
established right,” Pleasant View Baptist Church v. Beshear, 78 F.4th 286, 295 (6th Cir. 2023)
(quoting Rhodes, 10 F.4th at 679).
Instead, there must be “a sufficiently analogous case (or cases) from which a
‘reasonable official would understand that what he is doing violates that right.’” Id. (quoting
Rhodes, 10 F.4th at 679). In other words, “the specific conduct need not have been found

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unconstitutional” as long as “existing precedent . . . placed the . . . constitutional question beyond
debate.” Baynes v. Cleland, 799 F.3d 600, 613 (6th Cir. 2015) (citation modified). Existing
precedent can make “an action’s unlawfulness . . . apparent [via] direct holdings, from specific
examples described as prohibited, or from the general reasoning that a court employs.” Ouza v.
City of Dearborn Heights, 969 F.3d 265, 283 (6th Cir. 2020) (quoting Feathers v. Aey, 319 F.3d
843, 848 (6th Cir. 2003)); see Baynes, 799 F.3d at 612.
Caselaw predating Bender’s eviction made it abundantly clear that the Officers violated
Bender’s Fourth Amendment rights. First, existing precedent clearly established that the
Officers’ actions crossed the line from mere presence at the scene to active participation in the
eviction. For example, in Cochran we held that deputies actively participated in the repossession
of Cochran’s property when they arrived with the landlords, “threatened to restrain and/or arrest
anyone who attempted to interfere with the [landlords’] procurement of Cochran’s personal
property,” removed some of Cochran’s property themselves, placed the property on a truck, and
purchased one of Cochran’s TVs. 656 F.3d at 304–05, 308. Just like in Cochran, the Officers
here arrived with Kevin Surette and threatened to arrest Bender. R. 27 (Bender Dep. at 102:9–
19, 106:1–25) (Page ID #387, 391).
Even though the Officers did not carry property out of the condo, they told Bender that
she had ten minutes to exit the condo, took her key to the condo, pushed her out the door, and left
the condo only after she was forced to exit. Taking the key from Bender and pushing her out of
the condo is analogous to the deputies carrying out personal property in Cochran—the Officers’
actions directly deprived Bender of use of and access to the condo. Additionally, in Cochran we
explained that Soldal “addressed a situation in which deputy sheriffs not only stood by to keep
the peace during the repossession of a trailer home but played an active role in facilitating the
wrongful repossession” by telling “Soldal they were there to prevent his interference in the
repossession and by refusing to stop a legally questionable repossession by others.” 656 F.3d at
307–08.
Our reasoning in Hensley further supports the conclusion that the law was clearly
established. We explained that the following actions “were more than mere police presence and
reflect[ed] circumstances other courts have found indicative of state action”:

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(1) the [d]eputies arrived at the [plaintiff’s] residence with, and at the request of,
[the third party]; (2) [the deputies] ordered [the plaintiff], at least once, to move
from between the [car] and the tow truck, as [the plaintiff] was attempting to
thwart the repossession; (3) the [d]eputies ignored [the plaintiff’s] demands to
leave the property; (4) [the deputies] told [the plaintiff] that [the third party] was
taking the [car]; and (5) [the deputies] ignored both [the plaintiff’s] protest and
her explanation and told [the plaintiff] that [the third party] was still going to take
the [car].
Hensley, 693 F.3d at 691. That is closely analogous to the Officers’ actions here. It is certainly
true that Hensley did not ultimately rest its conclusion on those factors alone; the facts of the
case were “somewhat unique because, rather than dissuading [the plaintiff] from objecting, the
[d]eputies’ conduct prompted her to do so.” Id. But our statement that those facts “were more
than mere police presence and reflect circumstances other courts have found indicative of state
action,” id., is the type of reasoning and “specific examples” that can support that it was clearly
established that the Officers actively participated in the eviction, Ouza, 969 F.3d at 283.
Caselaw also made clear that the Officers’ conduct was unreasonable in violation of the
Fourth Amendment. We have long held “that state actors violate the Fourth Amendment by
taking an active role in private evictions and repossessions when there is no apparent legal basis
for such action.” Hensley, 693 F.3d at 694 (first citing Soldal, 506 U.S. at 71; and then citing
Cochran, 656 F.3d at 309). That means officers are “particularly” likely to “not [be] entitled to
qualified immunity” for participation in a seizure “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.” Cochran, 656 F.3d at 308.
In Cochran, we held that the seizure of Cochran’s personal property was unreasonable in
the absence of a court order permitting the seizure even though the deputies carefully read the
court eviction order and saw that it addressed only the home, not Cochran’s personal property.
Upon realizing that, the deputies contacted the county attorney, who told the deputies and
landlords that the landlords could seize and sell Cochran’s property to recoup the eviction costs.
Id. at 308–09. By contrast, the Officers here merely glanced at the will (they did not even read
the first page of the will, let alone carefully read the whole document) and did not ask an
attorney for advice on the legal basis of the seizure. We cannot see how Cochran would not

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make it clear to reasonable officers in the Officers’ position that their conduct was unreasonable
when they failed to carefully read the will or contact an attorney for legal advice. As the district
court aptly put it, “the Cochran defendants’ actions were far less troublesome than Bender’s
account of the Officers’ actions here, yet they still failed to pass constitutional muster,” and thus
“if the Cochran defendants’ actions didn’t pass muster under the Fourth Amendment’s
‘reasonableness’ standard, the Officers’ actions here . . . do not either.” Bender, 2025 WL
1735764, at *8.
The Officers argue that Cochran does not clearly establish that their conduct was
unreasonable because the deputies in that case “knew the property belonged to the tenant.”
Appellants Br. at 18. But the landlords and deputies in Cochran had been told by the county
attorney that the landlords had a right to Cochran’s personal property—the deputies were advised
“that the [l]andlords had a right to sell the property” to “recover some of the losses from the
eviction.” Cochran, 656 F.3d at 308–09. While on the scene, reasonable officers in their
position may well have understood that advice to mean that the landlords had a legal right to the
seized property that took priority over Cochran’s ownership. That is true even though it was
clear at the time of the litigation that the plaintiff owned the property, because the information
and circumstances at the time of the seizure is what is relevant for Fourth Amendment purposes.
Radvansky v. City of Olmsted Falls, 496 F.3d 609, 617 (6th Cir. 2007). And despite this, we
determined that the deputies’ reliance on the advice was unreasonable.
Any gaps that Cochran may have left in the law regarding disputed ownership were filled
by Hensley. In Hensley, we held that if a reasonable trier of fact accepted the plaintiff’s version
of the facts, they “could certainly conclude that the seizure was unreasonable” because the
repossession was a “private civil matter,” the third party repossessing the car “told the [d]eputies
that he had a repossession order and showed them a file containing some documents” that were
not a court order, and the officers knew that ownership of the car was disputed. 693 F.3d at 684,
688, 692. Therefore, Hensley clearly established that, absent an exigency, seizures of disputed
property are unreasonable when officers lack a court order and only have evidence that is worth
“no more weight than [the third party’s] own word.” Id. at 694. In fact, we even held that it was

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clearly established that the officers “could not accept” the third party’s claim of ownership
“over” the plaintiff’s claim. Id.
Here, a reasonable trier of fact could find that the Officers knew that the ownership of the
condo was disputed, there was no court order authorizing the eviction, they did not thoroughly
inspect the will to determine if Kevin Surette was in fact the executor or if the condo was listed
in the will, and they were crediting Kevin Surette’s claim over Bender’s based on only his
assertions. Those facts mirror the relevant factors we discussed in Hensley to support our
conclusion that the conduct was “unreasonable.” True, the deputies in Hensley took additional
actions, such as breaking the car’s window and “extract[ing] . . . [the plaintiff] from the vehicle
after the immediate threat of injury had passed,” which we described as “manifestly
unreasonable.” Id. at 692–93. But those additional facts were just the cherry on top of the
conclusion we had already reached—if the jury accepted the plaintiff’s version of the facts
mentioned above, the conduct was unreasonable. Therefore, it was clearly established that the
Officers’ conduct here was unreasonable in violation of the Fourth Amendment.
Against this conclusion, the Officers cite Howell, 148 F.4th at 843. Appellants Br. at 18.
In Howell, officers arrived at the home that Howell and a third party, Avila, shared as roommates
after Avila called 911 and stated that “her ‘crazy’ and ‘drunk’ housemate[] had ‘her’ car in their
‘garage’ and was ‘refusing to let her have it.’” Id. at 841. Avila also told the officers that Howell
“had ‘pointed a gun at [her] face.’” Id. After a confrontation with Howell that resulted in
officers handcuffing him and placing him in a patrol car, some of the officers “accompanied
Avila into the home to gather her belongings.” Id. at 842. Avila then attempted to retrieve the
car, and the officers helped Avila push the car out of the garage. Id. at 842, 851. The officers,
however, did not push the car off Howell’s property, so the car remained on his property “after
the officers had left.” Id. at 843. Avila returned on her own later and took the car off the
property. In the litigation, Howell asserted that he owned the car and that the officers committed
an unreasonable seizure.
We held that it was not clearly established that the officers violated the Fourth
Amendment. Id. at 851. The panel noted that it “s[aw] much uncertainty over the controlling
legal standards” that the “parties d[id] not address,” and reasoned that Cochran did not clearly

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establish that the officers violated the law for two reasons. Id. at 851–52. First, the deputies in
Cochran “knew that the property belonged to [Cochran],” but in Howell Avila told the officers
that she owned the car. Id. at 852. Second, in Cochran the deputies “helped the landlord[s]
remove the property from the premises,” but in Howell, the officers did not remove the car from
Howell’s property, and it remained there after the officers left. Id.
Despite the Officers’ argument to the contrary, Howell does not demonstrate that the
Officers’ conduct here did not violate clearly established law for several reasons. To start, the
second ground on which Howell distinguished Cochran is entirely inapplicable because, unlike
in Howell, the Officers here completed the seizure themselves by forcing Bender out of the
condo and taking her key before they left the premises. Turning to the first ground on which
Howell distinguished Cochran, there are, again, important factual differences here. Howell did
not tell the officers that he owned the car at the time of the alleged seizure or dispute Avila’s
claim to it in any way, so the officers were presented only with Avila’s claim that she owned the
car, which was not contested at the scene. And the officers knew that Avila lived at the plaintiff’s
home with him and had other personal belongings there, which was circumstantial evidence that
could be viewed as supporting her claim that she owned the car.
In contrast with Howell, here a trier of fact could find that Bender’s objection to the
Officers’ presence in the condo, requests to see a warrant, and statement that she had the only
true will would have informed every reasonable officer that Bender had a basis to believe, and
asserted, that she had an interest in the condo and Kevin Surette did not have any such interest.
Additionally, Kevin Surette had no belongings in the condo, and there was no other
circumstantial evidence supporting his right to it. Those factual differences make this case more
akin to Hensley than to Howell. But, likely because the parties did not cite or discuss Hensley,
the opinion in Howell did not cite Hensley. Yet, as shown above, Hensley, decided in 2012,
provides answers to the relevant legal standards in this case that we described in Howell in 2025
as uncertain. For example, Howell questioned what officers are to do when they encounter a
dispute over ownership of property. 148 F.4th at 851. Hensley provided the answer: without a
court order, exigent circumstances, or evidence other than the third-party’s own claims or

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documents, officers may not participate in the seizure and credit one party’s claim of ownership
over the other.
The dissent disputes that Bender sufficiently contested ownership of the condo because
she did not explicitly tell the Officers that she owned the condo. Dissent at 30. But in reaching
this conclusion, the dissent resolves this genuine dispute of material fact in favor of the Officers,
which we are not permitted to do in this posture. See Maben v. Thelen, 887 F.3d 252, 269 (6th
Cir. 2018) (“[U]nder either prong [of the qualified-immunity analysis], courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment.” (quoting Tolan v.
Cotton, 572 U.S. 650, 656 (2014))). As already explained, Bender has presented evidence that
could reasonably be interpreted as showing that Bender claimed an interest in the condo and
disputed Kevin Surette’s claim. Bender asked the Officers to see a warrant and told them that
they needed one to enter the condo, asked to see the will that Kevin Surette had shown the
Officers, told the Officers that she “kn[e]w [Cole’s] last will was” executed in 2021, and told the
Officers that she “had the only true will.” R. 27 (Bender Dep. at 101:8–102:1) (Page ID #386–
87). Reasonable triers of fact could conclude that such conduct would indicate to all reasonable
officers that Bender believed she had a possessory right to the condo because the average person
would generally not demand a warrant to enter a residence in which they had no interest, state
that they had the only true will, or request to see the documentation presented to officers that
allegedly gave the third party a right to the property while providing information that, had the
officers read the document at all, entirely undermined the third party’s claim to the property.
True, a trier of fact may not be compelled to conclude that such actions were sufficient to
show Bender disputed ownership of the condo. And if that is the case, then, as the dissent
contends, the Officers will be entitled to qualified immunity. But the evidence presented here
would allow the trier of fact to reasonably conclude that Bender disputed ownership. And if the
trier of fact does, this ground on which the dissent attempts to distinguish our precedent from this
case is inapplicable because the jury will have determined that Bender disputed ownership of the
property just like the plaintiffs did in Hensley and Cochran, even if the plaintiffs in those cases
did so with different verbal formulations. See Dissent at 30–31.

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The Officers’ final argument is that “even if Bender can show that [her] constitutional
right has been violated[] and was clearly established,” they are entitled to qualified immunity
because they “reasonably misapprehend[ed] the law.” Appellants Br. at 22–23 (citation
modified). But there is no third “reasonableness” prong to the qualified-immunity analysis. The
Supreme Court has “ma[d]e clear . . . that the test for qualified immunity has only two prongs—
whether the defendant violated a constitutional right and whether the right at issue was clearly
established; there is no separate ‘objective unreasonableness’ prong.” Brown v. Lewis, 779 F.3d
401, 417 (6th Cir. 2015) (citing Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)). Therefore, the
Officers’ final argument is foreclosed by binding precedent.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of qualified immunity.

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_________________
DISSENT
_________________
THAPAR, Circuit Judge, dissenting. Kevin Surette asked the police to keep the peace as
he spoke to Mary Ann Bender about why she was living in his deceased aunt’s condo. Two
police officers watched Surette and Bender argue for an hour, then confiscated Bender’s copy of
the condo key. The majority now finds that these officers aren’t entitled to qualified immunity
because their actions violated Bender’s clearly established Fourth Amendment rights.
But as we said last year, there’s “much uncertainty over the controlling legal standards”
when officers attend a private repossession. Howell v. McCormick, 148 F.4th 834, 841–43 (6th
Cir. 2025). And, sure enough, the majority doesn’t identify any binding precedent showing that
these officers unreasonably seized the condo. That means any alleged constitutional violation
wasn’t clearly established.
These officers aren’t legal experts, so they couldn’t have known their actions supposedly
violated Bender’s rights. And that entitles them to qualified immunity. I respectfully dissent.
* * *
To be clearly established, the contours of a constitutional right must be so “clear that
every reasonable official would have understood that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (emphasis added) (quotation omitted).
This, in turn, means that existing precedent “must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). But our precedent does
the opposite.
We concluded as much last year. In Howell, officers helped a woman repossess a car that
they believed was hers—though it later turned out that title was unclear. 148 F.4th at 841–43. In
that case, we assumed the plaintiff, not the repossessor, had rightful title, yet we still found the
officers were entitled to qualified immunity. That’s because “no legal principle . . . establishe[d]
beyond doubt that the officers committed an unreasonable seizure” by participating in this

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private repossession. Id. at 851 (cleaned up). In fact, after walking through many of the same
cases the majority cites, we found “much uncertainty over the controlling legal standards.” Id.
If federal judges viewed the law as “uncertain[]” after careful analysis and with plenty of time to
scour the Federal Reporters, there’s no way the officers would’ve realized they were violating
Bender’s rights in the midst of a heated confrontation.
The majority argues that Howell doesn’t apply because, in that case, the officers didn’t
know title to the car was contested (even though it was in the plaintiff’s garage). But the officers
here didn’t know title to the condo was contested either. In fact, Bender never explained to the
officers that she was the rightful owner of the condo. Instead of asserting title, Bender told the
officers that she was staying at the condo while “getting back on her feet” after an illness. R. 27,
Pg. ID 378. The only way she arguably contested title was by mentioning that she “had the only
true will.” Id. at 386. But rather than produce that will or explain why it was relevant to the
ownership of the condo, she simply demanded Surette’s copy of the 2015 will. So the officers
saw only one document: the 2015 will that identified Surette as a beneficiary and didn’t mention
Bender. That means the officers didn’t know Bender had a competing claim to title to the condo.
Indeed, the majority can’t identify a single case that would’ve put the officers on notice
that a vague request to see a warrant is enough to contest title. By contrast, in the Sixth Circuit
cases that the majority does cite, the plaintiffs made it crystal clear to the officers that they were
contesting title.1 In one case, deputy sheriffs helped two landlords evict a tenant and take his
personal belongings out of the home. Cochran v. Gilliam, 656 F.3d 300, 303–04 (6th Cir. 2011).
The eviction order didn’t mention the tenant’s personal property, so the tenant, his neighbors, and
his family members all called 911 and the state police to try to prevent deputies from taking his
property. In another case, the owner of a mobile-home park enlisted officers’ help to remove a
trailer from his property. Soldal v. Cook County, 506 U.S. 56, 58 (1992). The trailer owner then
tried to file a complaint for trespassing. Even though the officers “knew [the landlord] did not
1The majority relies heavily on cases from our sister circuits, as well as unpublished authority from our
court. See, e.g., Maj. Op. at 13, 14–15, 18–19. But rights are clearly established only when “existing precedent”
places the constitutional question “beyond debate.” al-Kidd, 563 U.S. at 741. And out-of-circuit cases and
unpublished opinions aren’t precedential, so they can’t resolve debated questions. Bell v. City of Southfield, 37
F.4th 362, 368 (6th Cir. 2022). That means they don’t clearly establish anything.

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have an eviction order and that [his] actions were unlawful,” they assisted with the eviction
anyways. Id. at 59. In both cases, the protestations created such substantial doubt about the
seizure’s legality that the officers called a lawyer. Id. at 58; Cochran, 656 F.3d at 303. And in a
third case, officers tried to help a debt collector repossess a car. Hensley v. Gassman, 693 F.3d
681, 684 (6th Cir. 2012). The car owner’s wife and son immediately explained they were up to
date on their payments and “the car was not supposed to be repossessed.” Id. at 685. The
owner’s wife went so far as to lock herself in the car to prevent the repossession.2
Those cases, which involved clear notice of a contested title, are night-and-day to this
one. The officers knew that Bender was “agitated” and “upset” about vacating the condo—but
that didn’t give them a reason to believe Surette’s assertion of title was anything other than
“sane” and “credible.” R. 31, Pg. ID 569, 582, 591. Bender recalls making only a brief and
unsupported claim that there might have been another will during the hourlong interaction. And
she never explained why that will would give her a competing claim to title (or invalidate
Surette’s claim). So, for all the officers knew, Bender’s copy of the “last” and “true” will was
identical to the one they’d already seen. R. 27, Pg. ID 386. In short, our cases wouldn’t have
provided officers notice that their actions were unreasonable given Bender’s vague protestations.
The majority also suggests the officers needed a court order—like an eviction notice or
confirmation of title—to act reasonably. But we don’t “require officers to act pursuant to a court
order for their seizure to be reasonable.” Couzens v. City of Forest Park, 114 F.4th 571, 578 (6th
Cir. 2024); see also Howell, 148 F.4th at 851. Instead, a court order simply makes it “nearly
impossible” to show that officers’ actions were unreasonable. Couzens, 114 F.4th at 578. So the
officers here had no reason to think a court order was necessary, especially when they had seen
Surette’s copy of the will, which named him—not Bender—as a beneficiary.
2The majority claims Revis v. Meldrum further supports that the officers acted unreasonably. 489 F.3d 273
(6th Cir. 2007); Maj. Op. at 18. But Revis provides no help. There, a deputy sheriff tried to satisfy a writ of
execution from a state-court judgment by evicting the plaintiff. Revis, 489 F.3d at 277. Unlike this case, the deputy
was directly performing an eviction based on a court order, not peacekeeping during a private repossession. And
there, our court found that the Tennessee law determining the eviction’s procedure was so unclear that the officer
was “entitled to qualified immunity for the reasonable mistake of law that occurred.” Id. at 287. In short, Revis is
so different from this case that it wouldn’t have put the officers on notice that they were violating Bender’s rights.

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* * *
Police officers are trained to protect the public, not pore through casebooks. And with
this much uncertainty in our caselaw, the officers here faced constitutional questions that weren’t
“beyond debate,” but were mired in it. al-Kidd, 563 U.S. at 741. That means they’re entitled to
qualified immunity.
During evictions and repossessions, emotions run high, and conflict is almost inevitable.
Sometimes that conflict can even turn violent. So law-enforcement officers play an important
role in proactively defusing those situations before they get out of hand. By denying qualified
immunity here, the majority places officers in a Catch-22: intervene and risk facing liability, or
wait on the sidelines until they receive a court order or a frantic 911 call. But by then, it might
be too late to prevent a tragedy.
I respectfully dissent.

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