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Fourth Circuit: No Qualified Immunity for Bail Bondsmen; $100,000 Damages Award Upheld

The Fourth Circuit Court of Appeals has upheld a jury verdict and $100,000 damages award, concluding that bail bondsmen are not entitled to qualified immunity.

South Carolina bail bondsman Jon E. Ham, through his company Quick Silver Bail Bonds LLC, posted a $20,000 bond for Tyis Rose; however, Rose failed to appear and the court issued a fugitive warrant for his arrest.

After months of searching for Rose, Ham conducted surveillance of the home of Shirley Gregg, an acquaintance of Rose's family, and witnessed Rose enter the residence. Two days later, at 7:30 a.m., Ham, a Sumter County sheriff's deputy and several other bail bondsmen returned to Gregg's home without a search warrant.

"Ham was 'shaking the door like he was going to break it' and warned [Gregg] that she 'had to let them come in or he was going to come in....' Through the window, Gregg observed that Ham was armed with a shotgun.... Gregg ultimately allowed Ham and [the deputy] to enter because she felt threatened and 'wasn't going to try to get killed.'

"Upon entering the house, Ham aimed his shotgun head-high or at chest level and kept it pointed up while searching throughout the house. Unable to locate Rose, he became agitated and started yelling questions at Gregg about Rose's whereabouts." Rose started to cry and the deputy intervened and told Ham to stop.

"Gregg called 911 to complain about the entry and search.... Later that day, Gregg's brother warned Ham not to return to his sister's house. Despite the warning, Ham returned to tell Gregg that he had raised the reward for Rose's apprehension. In response Gregg called her sister, who confronted Ham and told him to leave. According to Gregg, Ham responded that 'he can do whatever he wanted to do.'"

Gregg filed suit in state court against Ham, his company, the sheriff's department and the deputy sheriff who had accompanied Ham to her residence. The defendants removed the case to federal court and Gregg ultimately settled her claims involving the sheriff's department and deputy.

The claims against Ham and Quick Silver went to trial in February 2010, and a federal jury awarded Gregg $50,000 in compensatory damages and $50,000 in punitive damages. The district court denied Ham's motion for a new trial based on the issue of qualified immunity having been submitted to the jury, and awarded $20,000 in attorney's fees and $2,582.18 in costs to Gregg.

The Fourth Circuit affirmed the verdict and damages award, noting that neither party had objected to the district court's jury instruction as to qualified immunity. "Even assuming the instruction was improper," however, the appellate court found "there was no error because Ham was not entitled to a qualified immunity defense."

Based on the test set forth in Richardson v. McKnight, 521 U.S. 399 (1997) [PLN, Sept. 1997, p.1], the Court of Appeals concluded "that the history and policy behind the qualified immunity defense do not support extending it to bail bondsmen. First, there is no evidence that bail bondsmen have historically been afforded immunity for their actions. In fact, courts have rejected the notion that bail bondsmen act as an arm of the court or perform a public function." Second, "the policy justifications underlying qualified immunity do not apply to bail bondsmen," as "the work of a bail bondsman is fueled primarily by a strong profit motive" rather than an interest in public service.

As such, "Ham is ... unable to show error, plain or otherwise, based on the district court's jury instruction on a defense to which he was not entitled." To remove all doubt, the Fourth Circuit also noted that "he nevertheless fails to satisfy the requirements of the [qualified immunity] defense." See: Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012).

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Related legal case

Gregg v. Ham