Fourth Circuit: No Qualified Immunity for Bail Bondsmen
If the oh-so-dreamy Mad Men star Jon Hamm appeared on your porch and demanded entry to your home to look for a hooligan, you would happily admit him. Pour him a stiff drink. Sit for one of his clipped-toned, Don Draper-esque observations that would leave you questioning your life choices, but happy that your path had been corrected by such a charismatic passerby.
If South Carolina bail bondsman Jon Ham showed up on your porch with a shotgun and demanded entry to your home to find a fugitive, you might end up arguing qualified immunity in the Fourth Circuit Court of Appeals.
Guess which Jon we're discussing today?
Jon Ham, through his company Quick Silver Bail Bonds LLC, posted a $20,000 bond for Tyis Rose following his arrest for assault with intent to kill. After Rose failed to appear, the court issued a fugitive warrant for Rose's arrest. Ham tracked Rose to Shirley Gregg's community, and purportedly saw Rose enter Gregg's home.
Two days later, Ham returned to Gregg's property at 7:30 a.m. along with Sumter County Sheriff's Deputy Justin Yelton and several other bail bondsmen. Ham demanded entry to Gregg's home, searched her home for Rose while carrying a shotgun, and yelled questions at Gregg until Deputy Yelton intervened.
Gregg suffered from depression and anxiety, and was diagnosed her with post-traumatic stress disorder as a result of her Ham encounter. She sued Ham, Quick Silver, the Sumter County Sheriff's Department, and Yelton for gross negligence and recklessness, constitutional violations, trespass, intentional infliction of emotional distress, and assault. (She subsequently settled her claims against the Sheriff's Department and Yelton.) The jury awarded Gregg $50,000 in compensatory damages and $50,000 in punitive damages.
Ham challenged Gregg's claim based on qualified immunity.
Qualified immunity analysis requires multiple steps. First, the court determines whether a constitutional violation occurred, and second whether the right violated was clearly established.
When determining whether a private party acting under color of state law is entitled to qualified immunity, the Supreme Court has instructed courts "to look both to history and to the purposes that underlie government employee immunity." If "history does not reveal a firmly rooted tradition of immunity" and the policy considerations underlying qualified immunity do not apply to the defendant's category of private persons, then he is not entitled to qualified immunity.
Here, the Fourth Circuit Court of Appeals found that Ham was not entitled to qualified immunity because 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. Second, the policy justifications underlying qualified immunity do not apply to bail bondsmen. Finally, bail bondsmen are motivated by profit rather than by serving the public interest.
Some private actors working for the government can get qualified immunity; bail bondsmen are not in that group.
- Gregg v. Ham (Fourth Circuit Court of Appeals)
- What's Difference Between Bond and Bail? (FindLaw's Blotter)
- Private Attorneys Working for Government Get Qualified Immunity (FindLaw's Supreme Court Blog)