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Brooks v. Clark County

United States Court of Appeals, Ninth Circuit

July 7, 2016

Adam Brooks, Plaintiff-Appellee,
Clark County; Jim Keener, Marshal, Defendants-Appellants, and John Kevin Smith, Plaintiff, and Moody, Sergeant, Defendant.

          Argued and Submitted May 12, 2016 San Francisco, California

         Appeal 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 Defendants-Appellants.

          Cal J. 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.


         Civil Rights

         The 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.

         The 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.

         The 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:

         We must 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 conduct.



         Adam Brooks is a bail enforcement agent who owns Las Vegas Fugitive Recovery, a bail enforcement agency licensed in Nevada.[1] 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 hearing.[2]

         Brooks 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 district court.

         Smith, 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.

         Judge 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."

         Thinking 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.

         At this 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, "[l]et's go."

         According 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 ...

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