Adam Brooks v. Clark County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM BROOKS, No. 14-16424

Plaintiff-Appellee,

D.C. No.

and 2:13-cv-01693-JAD-VCF

JOHN KEVIN SMITH,

Plaintiff, OPINION

v.

CLARK COUNTY; JIM

KEENER, Marshal,

Defendants-Appellants,

and

MOODY, Sergeant,

Defendant.

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted May 12, 2016

San Francisco, California

Filed July 7, 2016

2 BROOKS V. CLARK COUNTY

Before: Jerome Farris, Diarmuid F. O’Scannlain,

and Morgan Christen, Circuit Judges.

Opinion by Judge O’Scannlain

SUMMARY*

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.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROOKS V. CLARK COUNTY 3

COUNSEL

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.

OPINION

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.

I

A

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

1

Because this case has not advanced past the motion to dismiss stage,

we recite the facts as alleged in Brooks’s complaint, and assume them to

be true. See, e.g., Harris v. Rand, 682 F.3d 846, 850–51 (9th Cir. 2012).

4 BROOKS V. CLARK COUNTY

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.

2

In addition to the facts alleged in the complaint, we will also consider

the transcript from Judge Lippis’s courtroom on the date in question. See

Mullis v. U.S. Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987); Fed. R.

Evid. 201(b).

BROOKS V. CLARK COUNTY 5

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

6 BROOKS V. CLARK COUNTY

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 details about whatever

injuries he sustained.

B

Brooks and Smith filed this lawsuit together under

42 U.S.C. § 1983, naming various defendants, including

Keener in his individual capacity. The complaint seeks only

damages. Upon motion by Keener, the district court

dismissed most of their suit, and Smith is not a party to this

appeal.

The only issue before us is whether the district court erred

by refusing to dismiss Brooks’s claim that Keener used

excessive force, in violation of the Fourth Amendment, when

he removed Brooks from Judge Lippis’s courtroom. Keener

moved to dismiss on the theory that he was entitled to

absolute, quasi-judicial immunity, or, if not, qualified

immunity. The district court rejected both arguments.

Keener timely appealed. We have jurisdiction under

BROOKS V. CLARK COUNTY 7

28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526–27

(1985); Behrens v. Pelletier, 516 U.S. 299, 307 (1996).

II

Keener first argues that he should be absolutely immune

from having to pay damages for the way in which he carried

out Judge Lippis’s instruction to escort Brooks out of her

courtroom.

We have never held that courtroom officials—bailiffs,

marshals, and the like—receive absolute immunity whenever

they act pursuant to a judge’s order, regardless of whether

they execute such order in a way that deviates from what the

judge commanded. The circuits are divided on the question.

Compare Richman v. Sheahan, 270 F.3d 430, 438–39 (7th

Cir. 2001) (rejecting absolute immunity), and Martin v. Bd.

of Cty. Comm’rs, 909 F.2d 402, 404–05 (10th Cir. 1990)

(same), with Martin v. Hendren, 127 F.3d 720, 721–22 (8th

Cir. 1997) (holding such officials do have absolute

immunity).

A

Absolute immunity is an extraordinary attribute. Those

who act while clad in its armor cannot be held liable for

damages under any circumstances, even if they violate clearly

established federal rights, and even if they do so intentionally

or maliciously. E.g., Pierson v. Ray, 386 U.S. 547, 554

(1967); Briscoe v. LaHue, 460 U.S. 325, 331–32 (1983).

Absolute immunity means such officials never have to justify

their actions; it all but guarantees swift dismissals under Rule

12(b)(6), thereby sparing its beneficiaries the many different

costs (pecuniary and otherwise) that litigation entails. The

8 BROOKS V. CLARK COUNTY

upside is that officials acting with absolute immunity may

discharge their duties with undampened ardor, and all of

us—not only, or even primarily, the officials—are better off

as a result. The most obvious downside is that “it would be

monstrous to deny recovery” in cases where an official “is in

fact guilty of using his powers to vent his spleen upon others,

or for any other personal motive not connected with the

public good.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.

1949) (Hand, J.). But in some contexts, we are willing to

tolerate the denial of individually effective remedies because

the harm of such episodic injustices is outweighed by the

systemic benefits a well-calibrated immunity regime

engenders.

Judges are among those officials who “have long enjoyed

a comparatively sweeping form of immunity,” which has

been justified on the theory that it helps “protect[] judicial

independence by insulating judges from vexatious actions

prosecuted by disgruntled litigants.” Forrester v. White,

484 U.S. 219, 225 (1988).3 The need to “free[] the judicial

process of harassment or intimidation” has led courts to

extend absolute judicial immunity beyond the judges

themselves, including “to Executive Branch officials who

perform quasi-judicial functions.” Id. at 225–26. In all cases,

the Supreme Court has emphasized that “immunity is

justified and defined by the functions it protects and serves,

not by the person to whom it attaches.” Id. at 227.

3

That being said, a judge does not receive absolute immunity for

“nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity,” and a judge does not receive absolute immunity “for actions,

though judicial in nature, taken in the complete absence of all

jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam).

BROOKS V. CLARK COUNTY 9

The Supreme Court has also made clear that “[t]he

proponent of a claim to absolute immunity bears the burden

of establishing the justification for such immunity.” Antoine

v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993). The

justification must take care to explain why the official hoping

to secure absolute immunity would not be sufficiently

shielded by qualified immunity, which already affords

officials considerable leeway to perform their jobs without

fear of personal liability. Indeed, as the Court has explained,

“[t]he presumption is that qualified rather than absolute

immunity is sufficient to protect government officials in the

exercise of their duties. We have been ‘quite sparing’ in our

recognition of absolute immunity, and have refused to extend

it any ‘further than its justification would warrant.’” Burns

v. Reed, 500 U.S. 478, 486–87 (1991) (quoting Forrester,

484 U.S. at 224 and Harlow v. Fitzgerald, 457 U.S. 800, 811

(1982)). Against the backdrop of qualified immunity, the

question in any given context is always what marginal costs

and benefits society would stand to incur by outfitting the

particular official with an additional layer of protection.

B

In this case, Brooks has alleged that Keener violated his

Fourth Amendment rights by using excessive force to remove

him from Judge Lippis’s courtroom. And the allegation is

quite clear that Judge Lippis did not order Keener to use

excessive force; instead, the allegation is that Keener acted

beyond the scope of Judge Lippis’s express and implied

instructions.

10 BROOKS V. CLARK COUNTY

1

Fleshing out the functional analysis underlying judicial

and quasi-judicial immunity, the Supreme Court has

instructed that “the ‘touchstone’ for the doctrine’s

applicability has been ‘performance of the function of

resolving disputes between parties, or of authoritatively

adjudicating private rights.’ When judicial immunity is

extended to officials other than judges, it is because their

judgments are ‘functional[ly] comparab[le]’ to those of

judges.” Antoine, 508 U.S. at 435–36 (quoting Burns,

500 U.S. at 500 (Scalia, J., concurring in the judgment in part

and dissenting in part) and Imbler v. Pachtman, 424 U.S. 409,

423 n.20 (1976)).4

Such terms cannot be used to describe the function

Keener was performing when he removed Brooks from Judge

Lippis’s courtroom. He makes no effort to argue that when

a courtroom marshal seizes an unruly litigant or spectator, the

marshal is performing a task comparable to that of a judge,

and it is clear to us that he is not. As we explained several

decades ago, in a truly extraordinary case in which a judge

allegedly came off the bench and physically beat someone

who refused an order to leave his courtroom:

The decision to personally evict someone

from a courtroom by the use of physical force

4

The Court has also noted that “[i]n determining which officials perform

functions that might justify a full exemption from liability, ‘we have

undertaken a considered inquiry into the immunity historically accorded

the relevant official at common law and the interests behind it.’” Antoine,

508 U.S. at 432 (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)).

Keener has not attempted an historical analysis.

BROOKS V. CLARK COUNTY 11

is simply not an act of a judicial nature, and is

not such as to require insulation in order that

the decision be deliberately reached. . . .

More importantly, we cannot believe that the

purpose of the judicial immunity doctrine—to

promote ‘principled and fearless decision-

making’—will suffer in the slightest if it is

held that judges who physically assault

persons in their courtrooms have no automatic

immunity.

Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974). So

too here. Indeed, we even opined that had the judge in

Gregory “summoned a sheriff,” and “had the sheriff assaulted

[the plaintiff], the sheriff would not have been entitled to

claim absolute immunity but only the defense that he was

acting in good faith” (that is, with qualified immunity). Id. at

64–65.

Unable to analogize the function he performed here with

that of a judge, Keener instead emphasizes that marshals do

indispensable work in helping to exert control over the

courtroom. We readily agree, but that alone is not enough to

win them a judge’s immunity. Indeed, in Antoine the Court

explicitly rejected the proposition that absolute quasi-judicial

immunity should be extended to someone merely because his

function “is extremely important or . . . ‘indispensable to the

appellate process.’” 508 U.S. at 436–37. Likewise, in

Forrester the Court refused to give a judge absolute

immunity for his hiring and firing decisions, even though

such “[a]dministrative decisions . . . may be essential to the

very functioning of the courts.” 484 U.S. at 228.

Notwithstanding the importance of a given function to the

administration of justice, the official engaged in it does not

12 BROOKS V. CLARK COUNTY

deserve absolute quasi-judicial immunity if “by the very

nature of his work [he] performs no judicial function.”

Antoine, 508 U.S. at 436 n.11 (emphasis added).

Nor do we perceive any danger that declining to give

Keener absolute immunity will cause him to second guess the

presiding judge or will otherwise erode the trust that exists,

and must exist, between them. Keener is exposed to liability

(but still protected by qualified immunity) only because he

allegedly went beyond what the judge ordered. Thus,

rejecting absolute immunity in a case like Keener’s does not

create any incentive for him to hesitate when told to do

something; it merely incentivizes him to stay within the

bounds of his orders.

Moreover, as explained above, the choice we face is not

between absolute immunity and no immunity at all. Rather,

the proper question is what marginal incentives absolute

immunity would create as compared to qualified immunity.

Keener has given no argument as to why qualified immunity

is not able to create optimal levels of trust and accountability

in the judge-marshal relationship—or, more generally, to

ensure that officials like him act with optimal vigor—and we

see no reason to pile more immunity on top of the already

robust qualified immunity Keener indisputably enjoys. In

this regard, we agree with the Seventh Circuit’s observation

that “the need for immediate action in the face of potentially

fatal consequences is not a situation unique to courtrooms,

and yet qualified immunity (which takes into account the

particular circumstances faced by the officers) is the rule for

law enforcement officers of all kinds, including secret service

officers charged with guarding the President. That the

conduct occurs in the courtroom, does not, in our opinion,

BROOKS V. CLARK COUNTY 13

justify our applying a different rule.” Richman, 270 F.3d at

438 (citations omitted).5

2

Keener’s counterargument places great weight on Mireles

v. Waco, a somewhat peculiar case in which the Supreme

Court held that a judge retains absolute immunity even when

he expressly and specifically orders a police officer to use

excessive force to seize a person in his courtroom. See

502 U.S. 9, 12–13 (1991) (per curiam). The Court did not

decide whether the officer who carried out such a bizarre

order—doing as he was told and no more—would also

receive absolute immunity. But even assuming he would,6 it

would do Keener little good, for that is not what allegedly

happened here. As noted above, Keener is alleged to have

5

When crafting the law of official immunity, it is wholly proper to focus

our analysis on the behavioral incentives a given level of immunity is

likely to have on the officers in question, see, e.g., Forrester, 484 U.S. at

223–24, but we should also bear in mind the possibility that immunity

doctrines might influence the identity of officeholders in the first instance,

cf. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (warning that the threat

of citizen lawsuits might “deter[] . . . able citizens from acceptance of

public office”). Such screening effects can be for good or for ill, if, for

example, an overly protective immunity regime entices prospective

officeholders who are less than public spirited and who would otherwise

be deterred from seeking office. On balance, there are some functions for

which a (remote) threat of civil liability is preferable to no threat at all.

6

We have previously suggested that absolute immunity does protect

those “who faithfully execute valid court orders.” Coverdell v. Dep’t of

Soc. & Health Servs., 834 F.2d 758, 764 (9th Cir. 1987); see also id. at

765 (“Coverdell has neither alleged nor shown that in executing the order,

McLaughlin exceeded its scope or acted improperly in any other way.”).

14 BROOKS V. CLARK COUNTY

employed more force than Judge Lippis ordered him to use.

That distinction makes an enormous difference.

The Mireles Court reasoned that because a judge’s order

to seize a litigant is by nature a judicial decision, the blanket

immunity required to insulate such decisions from collateral

attacks must be expansive enough to cover even those that are

in error or otherwise outside the bounds of a judge’s proper

authority. Id. However persuasive that logic might be, it

does not support stretching absolute immunity to embrace the

facts alleged here. The reason is that a judge’s order to seize

someone carries an implicit caveat that the officer follow the

Constitution in doing so. A marshal’s decision to go beyond

those limits is not a judicial decision, and allowing such

decision to be examined in a suit for damages would not

permit a collateral attack on the judge’s own decision; nor

would it make the marshal into a “lightning rod” for

vexatious litigants whose real gripe is with the judge himself.

Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno,

547 F.2d 1, 3 (1st Cir. 1976). In our view, extending absolute

immunity to a marshal’s unauthorized acts would do little if

anything to further the important goals underlying the Mireles

decision. We are satisfied that neither precedent nor first

principles justify giving courtroom officials absolute

immunity when they allegedly use force in excess of what

their judge commanded and the Constitution allows.

III

In addition to invoking absolute immunity, Keener argues

that Brooks’s suit against him should be dismissed on

grounds of qualified immunity.

BROOKS V. CLARK COUNTY 15

A

The Supreme Court has remarked several times that in

Fourth Amendment excessive force cases, “qualified

immunity operates ‘to protect officers from the sometimes

hazy border between excessive and acceptable force.’”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)

(quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). To that

end, qualified immunity shields an officer from damages

liability when it was not “clearly established that the Fourth

Amendment prohibited [his] conduct in the ‘situation [he]

confronted.’” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)

(per curiam) (quoting Brosseau, 543 U.S. at 199–200).

Under that standard, if “we cannot say that only someone

‘plainly incompetent’ or who ‘knowingly violate[s] the law’

would have . . . acted as [the officer] did,” then he is entitled

to qualified immunity. Id. at 310 (first alteration in original)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

It bears emphasizing that our analysis must always be

trained on the particular facts and circumstances under

review; to overcome a qualified immunity defense, it is never

enough simply to recite the general proposition that the

Fourth Amendment prohibits officers from using an amount

of force that is objectively unreasonable. Rather, “[t]he

dispositive question is ‘whether the violative nature of [the

officer’s] particular conduct is clearly established.’” Id. at

308 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

And “[t]his inquiry ‘must be undertaken in light of the

specific context of the case, not as a broad general

proposition.’” Id. (emphasis added) (quoting Brosseau,

543 U.S. at 198). Although the Supreme Court “has rejected

the idea that ‘an official action is protected by qualified

immunity unless the very action in question has previously

16 BROOKS V. CLARK COUNTY

been held unlawful,’” id. at 314 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)), it is always the case

that “existing precedent must have placed the statutory or

constitutional question beyond debate,” al-Kidd, 563 U.S. at

741. “[T]he crux of the qualified immunity test is whether

officers have ‘fair notice’ that they are acting

unconstitutionally.” Mullenix, 136 S. Ct. at 314 (quoting

Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

B

Brooks alleges that Keener employed excessive force by

shoving him through the courtroom’s double doors. On the

merits, such excessive force claims are governed by an

objective reasonableness standard derived from the Fourth

Amendment. Graham v. Connor, 490 U.S. 386, 395–97

(1989). To determine whether state officials used excessive

force, courts balance “‘the nature and quality of the intrusion

on the individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.” Id. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Courts

must examine the “facts and circumstances of each particular

case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. Courts “also

consider, under the totality of the circumstances, the quantum

of force used to arrest the plaintiff, the availability of

alternative methods of capturing or detaining the suspect, and

the plaintiff’s mental and emotional state.” Luchtel v.

Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) (citations

omitted).

BROOKS V. CLARK COUNTY 17

C

In light of these principles, we must ask the following

question: assuming the allegations Brooks has made are true,

was it “beyond debate,” at the time Keener seized him, that

the amount of force Keener employed violated the

Constitution? If the answer is no—if Keener’s actions did

not clearly violate Brooks’s rights under the Fourth

Amendment—then Keener is entitled to qualified immunity,

and his motion to dismiss must be granted. Mullenix, 136 S.

Ct. at 309 (“The relevant inquiry is whether existing

precedent placed the conclusion that Mullenix acted

unreasonably in these circumstances ‘beyond debate.’”

(quoting al-Kidd, 563 U.S. at 741)).

1

Given 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. Assuming all of Brooks’s allegations are true, it still

cannot be said that Keener’s use of force was indisputably

unconstitutional. That is, a reasonable marshal could have

believed that the Fourth Amendment permitted him to use the

amount of force Brooks claims Keener employed, even if the

circumstances were exactly as Brooks describes. For that

reason alone, Keener is entitled to qualified immunity, and

the district court should have granted his motion to dismiss.

Brooks’s complaint states merely that “Keener forcefully

shoved [him] through double-doors of a courtroom injuring

[his] back.” His affidavit is similarly barebones, saying only

that Keener “grabb[ed] [him] and forcefully push[ed] [him]

out of the courtroom.” Moreover, the transcript of

18 BROOKS V. CLARK COUNTY

proceedings in front of Judge Lippis demonstrates that before

Keener shoved Brooks, Brooks had at least twice defied the

judge’s order to leave; had continued to resist Keener’s verbal

instructions to leave; and that two of Brooks’s compatriots

had similarly disrupted the court, harassing and intimidating

two women in the courtroom, all in defiance of Judge

Lippis’s orders. Given the chaos in the courtroom and the

undisputed evidence that Brooks was intent on disobeying the

court’s instructions—and given his extremely vague and

insubstantial allegations about his injury—it is simply not

“beyond debate” that Keener employed an unreasonable

amount of force.

Indeed, the Supreme Court has stated more than once

that—on the merits—“[n]ot every push or shove, even if it

may later seem unnecessary in the peace of a judge’s

chambers, violates the Fourth Amendment.” Saucier,

533 U.S. at 209 (quoting Graham, 490 U.S. at 396).

Similarly, the Court has instructed that “[i]f an officer

reasonably, but mistakenly, believed that a suspect was likely

to fight back, for instance, the officer would be justified in

using more force than in fact was needed.” Id. at 205. The

events here fit that description. And just as important, Brooks

has cited nothing at all to establish that existing precedent

silences all debate about whether Keener’s shove violated the

Fourth Amendment.

Not only is there a lack of authority on Brooks’s side, but

several cases show that Keener had “substantial grounds . . .

to have concluded he had legitimate justification under the

law for acting as he did.” Id. at 208. For instance, in Ward

v. Gates, 52 F. App’x 341, 344–45 (9th Cir. 2002)

(unpublished), a panel of our court rejected an excessive force

claim on the merits where the plaintiff alleged that the

BROOKS V. CLARK COUNTY 19

officers “unreasonably pointed their weapons at her,

handcuffed her roughly, [and] smashed her arm on [a] desk.”

Id. at 344. The excessive force claim failed on the merits

despite the fact that “there was no need for the officers to use

any force at all,” for the officers were “mistaken in their

belief that [the plaintiff and her compatriot] were dangerous.”

Id.; see also, e.g., Crumley v. City of St. Paul, 324 F.3d 1003,

1008 (8th Cir. 2003) (“Accepting Crumley’s version of the

facts as true, we conclude no reasonable jury could have

found the police officer used excessive force by pushing or

shoving Crumley to effect the arrest.”). If the officers’

conduct in such cases was justified on the merits, then

Keener’s conduct here cannot be said to be indisputably

unconstitutional—at worst, there is room for debate as to

whether Keener’s conduct complied with the Fourth

Amendment. “Ultimately, whatever can be said of the

wisdom of [Keener’s] choice, this Court’s precedents do not

place the conclusion that he acted unreasonably in these

circumstances ‘beyond debate.’” Mullenix, 136 S. Ct. at 311

(quoting al-Kidd, 563 U.S. at 741). That is enough to win

him a qualified immunity defense.

2

The district court concluded otherwise, but its analysis

betrays a fundamental misunderstanding about how to assess

a qualified immunity defense to an excessive force claim. In

denying Keener’s motion to dismiss based on qualified

immunity, the district court reasoned that “Keener’s conduct

could be inferred to have violated objective standards of

reasonableness regarding the removal of Mr. Brooks from the

courtroom.” Brooks takes the same tack, arguing simply that

“the well-pled allegations . . . set forth that Keener’s actions

were not objectively reasonable.” Those propositions may be

20 BROOKS V. CLARK COUNTY

true, but they are not enough to defeat Keener’s qualified

immunity defense. The district court and Brooks’s analysis

says only that, on the merits, Keener’s conduct may have

violated the Fourth Amendment. But, crucially, they both

have failed to consider the distinct question discussed above:

whether, based on the allegations in the complaint, Keener’s

conduct could be inferred to have violated a “clearly

established” right. The answer is no, because as we have

explained, the allegations in the complaint do not plausibly

place the illegality of Keener’s conduct “beyond debate.”

In other words, the district court here committed the same

error the Supreme Court corrected in Saucier v. Katz:

equating the excessive force question on the merits (did

Keener employ an objectively unreasonable amount of

force?) with the qualified immunity question (did existing

law remove any doubt that such force was objectively

unreasonable?). The two questions are not the same. See

Saucier, 533 U.S. at 202–03 (rejecting the proposition “that

qualified immunity is merely duplicative in an excessive

force case”). The Court has made clear that to defeat

qualified immunity, Brooks must not only allege that Keener

used an unreasonable amount of force, but also that no

reasonable officer could disagree that Keener used an

unreasonable amount of force. Id. at 202 (“The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.”). As we have already discussed, Brooks’s

allegations do not suffice to overcome Keener’s qualified

immunity defense. The complaint should have been

dismissed on those grounds.

BROOKS V. CLARK COUNTY 21

IV

For the foregoing reasons, we AFFIRM the district

court’s denial of Keener’s absolute immunity defense and

REVERSE the district court’s denial of his qualified

immunity defense. Appellee’s motion to dismiss, filed on

April 16, 2015, is denied. Each party shall bear its own costs

on appeal.