Immunity for Nevada Gaming Agents

The U.S. Court of Appeals for the Ninth Circuit has ruled that two Nevada gaming agents were entitled to qualified immunity from prosecution for arresting a casino patron for theft.  Conner v. Heiman, No. 10-17545 (March 9, 2012). The patron refused to repay $950 to Harrah’s Reno on a baccarat bet payout that the casino said was made in error.  The appeals court reversed a ruling by the federal district court in Nevada that the patron was entitled to submit the immunity question to a jury.

In the summer of 2008, William Connor played baccarat at three tables at Harrah’s.  While playing at the third table, casino workers told him that he had been overpaid on a bet he made at the second table; he had received $2,850 even though the table limit on wagers effectively barred a payout above $1,900.  The workers confirmed the overpayment with the casino surveillance department.  Conner refused to return the money.  When he asked to view the surveillance video of his play, the casino refused.

Casino officials reported the incident to the local Gaming Control Board office, which opened an investigation.  After reviewing witness statements and the videotape of Conner’s play, a gaming agent and his supervisor agreed that Conner had been overpaid.  When Conner came to their office, they directed him to repay the $950 or face arrest.  They refused to show Conner the video of his play.  They placed him under arrest and took him to Harrah’s, where he paid the money.

Conner sued the two agents for violating his Fourth Amendment rights by arresting him without probable cause to believe he had committed a crime.  He also accused Harrah’s of conspiring with the agents to deny his constitutional rights.  Judge Robert Clive Jones of the U.S. District Court for the District of Nevada rejected the defense of the gaming agents that they were immune from suit so long as they reasonably believed Connor had committed a crime.  Judge Jones held that a reasonable jury could conclude that Conner thought he was entitled to the full payout on his bets and thus had committed no crime.

In an opinion written by a visiting judge, Jed S. Rakoff of New York City, the court of appeals reversed on two grounds.  First, it held that Judge Jones should not have left the immunity question for the jury, since there were no facts in dispute.

Second, the appellate panel concluded that Judge Jones misstated the test for qualified immunity.  Immunity is available so long as the agents reasonably thought their actions were justified, even if a jury might conclude that they were not.  Under the Nevada theft statute, N.R.S. § 205.0832(1)(a), the agents reasonably concluded that Conner was controlling property ($950) that belonged to Harrah’s.  “That the opposite conclusion was also reasonable, or even more reasonable, does not matter so long as [the agents’] conclusion was itself reasonable.”

The appeals court reversed the decision below and directed that the case against the two agents be dismissed.