An Unqualified Applicant: The Inequitable Application of Qualified Immunity to Bail Bondsmen in Light of Filarsky v. Delia and Gregg v. Ham

The fugitive is a puppet and the bondsman is his master. The bondsman may pull the puppet's strings at any time and for any reason, track the defendant, and return the fugitive to prison on a whim. These are the historic powers of the bondsman granted by the United States Supreme Court in Taylor v. Taintor, and have become nearly undisputed. But a more recent tale has also begun to unfold, illuminating that the bondsmen may have strings of their own. Controlled by the most powerful of puppet masters-the courts-the bondsmen's strings operate as a check on the bondsmen's activities and the procedures by which they recapture fugitives. One movement out of line, and the courts can snap the bondsmen's strings, subjecting them to timely and costly litigation. The only freedom from these strings comes in the form of qualified immunity, a judicially created doctrine that serves as a bar to civil liability.

This Note addresses the applicability of qualified immunity to bail bondsmen, specifically in the context of the United States Court of Appeals for the Fourth Circuit's recent decision in Gregg v. Ham, which denied bondsmen access to this doctrine, and the Supreme Court's qualified immunity analysis in Filarsky v. Delia, which granted qualified immunity to special prosecutors. Particularly, this paper supports three central propositions: (1) the current qualified immunity analysis can be reduced to a determination of whether a party receives private or public compensation; (2) this qualified immunity test leads to irrational and inequitable results in the case of bondsmen, who are denied immunity for performing the same function that immunity-granted police officers undertake; and (3) a functional analysis test is a better alternative for the qualified immunity standard because it eliminates the arbitrary and unfounded distinctions between public and private employees. Under the current qualified immunity test, a bondsman's strings can never be cut. Only with the introduction of a more realistic and transparent qualified immunity standard can equitable treatment finally be afforded to the bondsman.

Republished with permission. The complete article is available and published with permission of HeinOnline. This article, authored by Bethany Corbin, first appeared in the Charlotte Law Review, Vol. 4, pg 339, 2013.