Ninth Circuit: Courtroom Deputy Entitled to Qualified, Not Absolute, Immunity

Loaded on Aug. 30, 2017 published in Prison Legal News September, 2017, page 39

Filed under: Bail, Qualified Immunity. Location: Nevada.

The Ninth Circuit has held that a courtroom deputy was not entitled to absolute immunity for shoving a bail enforcement agent from a courtroom. The appellate court also found, however, that the deputy was entitled to qualified immunity.

Nevada bail enforcement agent Adam Brooks owns Las Vegas Fugitive Recovery. Brooks and fellow enforcement agents John Kevin Smith and Matthew Penny intended to arrest Malena Reed and Mary Beth Lourcey during their preliminary hearing before the Regional Justice Court of Las Vegas.

The women were on bail on charges of conspiracy to make a bomb threat, but failed to keep their bail bond company, AIA Surety, apprised of their location. The enforcement agents believed they were authorized to detain the women for AIA.

Justice of the Peace Deborah Lippis refused to allow the agents to arrest the women. “These ladies aren’t fugitives,” Lippis told Smith. She then ordered that they “are not to be taken into custody” unless AIA filed a proper motion with the district court.

Smith ignored Judge Lippis’ order and told the women they could not leave until he spoke with his superiors. “No,” said Lippis, directing courtroom deputy marshal Jim Keener to “go out there and tell him he cannot tell those people what to do, that they are free to go, and ask him if he’d like me to take him into custody.” Smith and Penny remained in the hallway, threatening to arrest the women when they exited the courtroom.

Judge Lippis resumed proceedings in a different case but Smith interrupted, shouting about a Nevada statute concerning a surety’s state-law power to authorize bail enforcement agents to arrest someone on its behalf. “In you go,” said Lippis as she ordered Smith “under arrest for disrupting this court” and for “failing to follow the lawful orders of the court.”

“You’ve stopped my entire court proceeding with the behavior of both of you,” the judge added. Smith “was yelling in the hallway and I heard him citing law to my marshal. He ... refused to follow every order I entered.”

Lippis again ordered that the women “are not to be arrested, they are not.” She then dismissed Penny.

“It is clear to me that you have absolutely no respect for the court process and that you are going to do exactly what you want to do,” she said to Smith. “If you ever pull this garbage in this courtroom or any other courtroom again, you will stay in custody,” Lippis warned as she released Smith and attempted to resume court proceedings.

“It’s illegal what you guys are doing here,” interrupted Brooks. “Your honor, I’m taking names because it’s illegal. We’re a licensed bail enforcement company. I’m a retired police officer here. What you’re doing is illegal and I’m going to be suing you – everybody here.”

“Get out of my courtroom,” Lippis ordered. “Out, out, out.” Brooks continued to speak over her as she said “please leave.”

Lippis finally turned to Marshal Keener and said, “please escort this nice gentleman out of the courtroom.” Brooks told Keener he was a retired police officer. “I don’t care who you are,” said Keener. “Let’s go.” Keener then “shoved” Brooks through the courtroom doors, allegedly injuring his back.

Brooks and Smith filed suit in federal court against Marshal Keener and others, seeking damages for excessive force. The district court denied Keener’s motion to dismiss, holding that he was not entitled to absolute, quasi-judicial or qualified immunity.

The Ninth Circuit reversed on appeal. Although the appellate court agreed that Keener was not entitled to absolute immunity, it found he was entitled to qualified immunity.

The Court of Appeals wrote that the district court’s analysis “betrays a fundamental misunderstanding about how to assess a qualified immunity defense to an excessive force claim.”

The Court explained that “[g]iven the standard governing excessive force claims, the allegations in Brooks’s complaint are not sufficient to survive a qualified immunity defense even at the motion to dismiss stage.... a reasonable marshal could have believed that the Fourth Amendment permitted him to use the amount of force Brooks claims Keener employed.”

For that reason, “Brooks’s allegations do not suffice to overcome Keener’s qualified immunity defense. The complaint should have been dismissed on those grounds,” the Ninth Circuit concluded. See: Brooks v. Clark County, 828 F.3d 910 (9th Cir. 2016).