CA4: Bailbondsmen have no qualified immunity for trespass and assault

A bailbondsman sued for assault and trespass was not entitled to a qualified immunity defense when he came into plaintiff’s home. He was sued under § 1983 because he had police officers with him. Gregg v. Ham, 678 F.3d 333 (4th Cir. April 30, 2012)*:

Applying the test articulated in Richardson [Richardson v. McKnight, 521 U.S. 399, 404 (1997)], we conclude 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. See, e.g., Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 554-55 (9th Cir. 1974) (rejecting the “strange thesis” that a bail bondsman is “an arm of the court”); Fitzpatrick v. Williams, 46 F.2d 40, 40 (5th Cir. 1931) (“The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond.”).

Second, the policy justifications underlying qualified immunity do not apply to bail bondsmen. See generally Bailey v. Kenney, 791 F. Supp. 1511, 1523-25 (D. Kan. 1992) (concluding that “[w]ith respect to bail bondsmen, the court finds none of the compelling policy reasons that traditionally justify the availability of qualified immunity to state actors performing discretionary functions”). Courts have traditionally afforded qualified immunity to public officials because susceptibility to suit would distract them from performing their public functions, inhibit discretionary action, and deter desirable candidates from performing public service. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). There is no need, however, for qualified immunity to shield bondsmen from suit, as they are not entrusted with a public function. To the contrary, while the law certainly allows a bail bondsman to apprehend a fugitive, that right is exercised in tandem with the obligation of law enforcement to accomplish the same objective. See Bailey, 791 F. Supp. at 1524.

Moreover, rather than operating in the interest of public service, the work of a bail bondsman is fueled primarily by a strong profit motive. See Richardson, 521 U.S. at 409-10 (highlighting the importance of “ordinary marketplace pressures”). Accordingly, even if bail bondsmen are entrusted with a public function, the economic incentives inherent in the system would “ensure an ample number of qualified persons willing to assume the occupational risks of apprehending fugitives.” Bailey, 791 F. Supp. at 1524.

In sum, neither history nor policy support extending the qualified immunity defense to bail bondsmen. Ham is therefore unable to show error, plain or otherwise, based on the district court’s jury instruction on a defense to which he was not entitled.