Elizabeth Harvey v. Plains Twp Pol Dept, et al, No. 09-1170 (3d Cir. 2011)Annotate this Case
Harvey and her boyfriend jointly leased an apartment. After Harvey obtained an order of protection and was granted exclusive possession of the apartment, the boyfriend retrieved some of his belongings. Later, seeking to retrieve additional property, the boyfriend requested a police officer to accompany him to the apartment. The officer and the boyfriend, went to the apartment on a weekday, when Harvey was not at home, and, after the officer stated that he 'saw no problem with it' the landlord used her key to admit them. The trial court rejected claims under 42 U.S.C. 1983. The Third Circuit vacated and remanded, finding that the trial court incorrectly stated that 'in order to determine if the . . . plaintiff established her . . . claim, you must answer only one factual question, and that is did the defendant order the landlady to open the door.' Whether the officer took an active role in the entry and repossession of property so that there was state action depends on the totality of the circumstances and all of the officer's actions, not a single factual question. The court's language was highly prejudicial.