and Submitted May 12, 2016 San Francisco, California
from the United States District Court for the District of
Nevada D.C. No. 2:13-cv-01693-JAD-VCF Jennifer A. Dorsey,
District Judge, Presiding
Matthew Christian (argued), Deputy District Attorney; Steven
B. Wolfson, District Attorney; Clark County District
Attorney's Office, Las Vegas, Nevada; for
Potter, III (argued) and C.J. Potter, IV, Potter Law Offices,
Las Vegas, Nevada, for Plaintiff-Appellee.
Before: Jerome Farris, Diarmuid F. O'Scannlain, and
Morgan Christen, Circuit Judges.
panel affirmed in part and reversed in part the district
court's order denying a motion to dismiss a bail
enforcement agent's claim that a courtroom marshal used
excessive force, in violation of the Fourth Amendment, when
executing a judge's order to remove a disruptive
individual from her courtroom.
panel affirmed the denial of the marshal's absolute
immunity defense to the bail enforcement agent's claim
for damages. The panel concluded that the marshal was not
performing a judicial function when he removed the bail
enforcement agent from the courtroom, allegedly using force
in excess of what the judge commanded, and was not entitled
to absolute quasi-judicial immunity.
panel reversed the district court's denial of the
marshal's qualified immunity defense. The panel concluded
that on the basis of the allegations in the complaint, it was
not beyond debate, at the time the marshal acted, that the
amount of force he employed violated the Constitution.
O'SCANNLAIN, Circuit Judge:
decide whether a courtroom marshal is entitled to invoke
absolute immunity as a defense to the allegation that he used
excessive force when executing a judge's order to remove
a disruptive individual from her courtroom. If he is not, we
must decide whether qualified immunity insulates him from
having to pay damages for his allegedly unconstitutional
Brooks is a bail enforcement agent who owns Las Vegas
Fugitive Recovery, a bail enforcement agency licensed in
Nevada. On October 4, 2011, Brooks and two fellow
bail agents-John Kevin Smith and Matthew Penny-arrived at the
Regional Justice Center in Las Vegas. They were in pursuit of
Malena Reed and Mary Beth Lourcey, two women charged with
conspiracy to make a bomb threat who were then appearing in
the Justice Court, in the courtroom of Justice of the Peace
Deborah Lippis, to waive their right to a preliminary
and his two compatriots were intent on taking Reed and
Lourcey into custody, apparently at the behest of AIA Surety,
a bail bond insurance company, because the ladies had
allegedly failed to keep the company apprised of their
whereabouts. Judge Lippis was having none of it; although she
refused to exonerate the ladies' bonds, she told Smith
flatly that "[t]hese ladies aren't fugitives"
and "are not to be taken into custody" until the
bond insurance company had filed a proper motion with the
unhappy with Judge Lippis's instructions, told the ladies
they could not leave until he had a chance to make a phone
call to his superiors. "No, " Judge Lippis said,
turning to her marshal, Jim Keener: "Jim, 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." Undeterred, Smith began
citing case law to Keener, while he and Penny remained in the
hallway, evidently menacing Reed and Lourcey with the threat
of arrest upon their exiting the courtroom.
Lippis tried to resume the court's business by taking up
a different matter, but Smith interrupted the proceedings,
calling out the name of a Nevada statute (Nev. Rev. Stat.
§ 178.526) that describes a surety's state-law power
to authorize bail enforcement agents to arrest a defendant on
its behalf. Judge Lippis, understandably agitated, pronounced
Smith "under arrest for disrupting this court" and
for "failing to follow the lawful orders of the court.
In you go." Instead of backing down, however, Smith
tried to pass his phone to Penny, who was still waiting
outside. "Unbelievable, " Judge Lippis declared,
giving Penny "the same orders" she had given Smith,
namely, that "[t]hese women are not to be
arrested." Addressing the duo, Judge Lippis admonished
them: "you've stopped my entire court proceedings
with the behavior, both of you. . . . [Smith] was yelling in
the hallway and I heard him citing law to my marshal. He
failed every-he refused to follow every order I
entered." Judge Lippis reiterated her order that Reed
and Lourcey "are not to be arrested, they are not."
She then dismissed Penny. Turning back to Smith, Judge Lippis
stated "[i]t's clear to me that you have absolutely
no respect for the court process and that you're going to
do exactly what you want to do." She ultimately decided
to release Smith from custody, but with the warning that
"if you ever pull this garbage in this courtroom or any
other courtroom again, . . . you will stay in custody."
the coast was at last clear, Judge Lippis tried to resume
court business. But then Brooks entered the scene.
"It's illegal what you guys are doing here, "
he declared. "Get out of my courtroom, " Judge
Lippis replied. "Out, out, out." "Your honor,
I'm taking names because it's illegal, " Brooks
carried on. "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
your-everybody here." Brooks repeatedly spoke over Judge
Lippis as she asked him to "[p]lease leave, " even
blurting out the same Nevada statute Smith had cited earlier.
point Judge Lippis turned to Marshal Keener, asking him to
"please escort this nice gentleman out of the
courtroom." Still refusing to cooperate, Brooks declared
that he was a "retired police officer." "I
don't care who you are, " Keener replied,
to Brooks's complaint, Keener then "shoved" him
through the courtroom's double doors, "injuring
[his] back." Brooks further alleges that he was taken to
a hospital for treatment. He does not allege any ...