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Nevada State Gaming Control Board Employees have Qualified Immunity from Fourth Amendment Violations

On July 19, 2008, Mr. Conner was playing baccarat at Harrah’s casino when Sang Lee and Linda Coffee, Harrah’s employees, separately indicated to Conner that they wished to speak with him. When Conner declined to speak, Coffee stopped the game. Coffee told Conner that a dealer overpaid him on one of his winning bets, which the casino’s surveillance department confirmed. Conner refused to return the overpayment. The next day, at a meeting with Jim Webbert, a Harrah’s games manager, Conner continued to refuse to return the overpayment and Harrah’s refused to show him the surveillance tape. Webbert then reported the overpayment incident to the Nevada State Gaming Control Board, who informed Harrah’s that if Conner did not return the overpayment then the Gaming Control Board could investigate the incident as a criminal matter.

Two weeks later, Harrah’s informed the Gaming Control Board that Conner had not paid back the overpayment. The Gaming Control Board reviewed the surveillance tape and employee statements. The Gaming Control Board then told Conner that while Conner had committed no crime by accepting the overpayment, retaining the overpayment would constitute theft under Nevada law. Conner refused to return the overpayment without seeing the surveillance tape. When Conner later came to the Gaming Control Board office to speak to a supervisor, Conner was frisked, and then arrested. Gaming Control Board employees then took Conner to Harrah’s, where he returned the overpayment, then back to his car.

Conner brought suit against the Gaming Control Board. Conner claimed his Fourth Amendment rights were violated because he was arrested without probable cause to believe that he had committed a crime. The Gaming Control Board then filed a motion for summary judgment based on the defense they had qualified immunity.

The district court concluded that “although there is no question of fact that a reasonable officer could have believed Conner had committed the requisite actus reus for theft, a reasonable jury could find that there was no probable cause to believe that Conner had the requisite mens rea for theft.” Specifically, the court concluded that Conner’s behavior was consistent with a person who is accidentally overpaid, does not realize it, has no way to confirm or deny it when confronted . . . who is understandably defensive when accused of theft, and who is understandably suspicious when his accuser refuses to show him alleged evidence it possesses.”

The district court held for Conner and denied the Gaming Control Board’s motion for summary judgment. The latter appealed.

Qualified immunity is “immunity from suit rather than a mere defense to liability.” Mitchell, 472 U.S. at 526. Furthermore, when the material facts of a situation are not in dispute, the determination of whether qualified immunity applies is a decision for the court and not a jury. Act Up!/Portland, 988 F.2d at 873. Peng, 335 F.3d at 979-80.

The district court erred in reserving the question of whether “probable cause existed” for the jury. Furthermore, under the totality of the circumstances, a “fair probability” existed that Conner knew that he controlled Harrah’s property and intended to deprive Harrah’s of that property. Thus, the Gaming Control Board employees could have reasonably concluded that they had probable cause to believe that Conner had the requisite mens rea to commit the crime.

The Gaming Control Board did not violate clearly established Fourth Amendment rights. Qualified immunity bars the Gaming Control Board from Conner’s claims. District Court reversed. Conner v Heiman and Neil, No. 10-17545 (2012).

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.