                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ADAM BROOKS,                            No. 14-16424
       Plaintiff-Appellee,
                                       D.C. No.
           and                 2:13-cv-01693-JAD-VCF

JOHN KEVIN SMITH,
                Plaintiff,               OPINION

            v.

CLARK COUNTY; JIM
KEENER, Marshal,
   Defendants-Appellants,

           and

MOODY, Sergeant,
              Defendant.


      Appeal from the United States District Court
               for the District of Nevada
      Jennifer A. Dorsey, District Judge, Presiding

         Argued and Submitted May 12, 2016
              San Francisco, California

                   Filed July 7, 2016
2                  BROOKS V. CLARK COUNTY

      Before: Jerome Farris, Diarmuid F. O’Scannlain,
           and Morgan Christen, Circuit Judges.

                 Opinion by Judge O’Scannlain


                           SUMMARY*


                            Civil Rights

    The panel affirmed in part and reversed in part the district
court’s order denying a motion to dismiss a bail enforcement
agent’s claim that a courtroom marshal used excessive force,
in violation of the Fourth Amendment, when executing a
judge’s order to remove a disruptive individual from her
courtroom.

    The panel affirmed the denial of the marshal’s absolute
immunity defense to the bail enforcement agent’s claim for
damages. The panel concluded that the marshal was not
performing a judicial function when he removed the bail
enforcement agent from the courtroom, allegedly using force
in excess of what the judge commanded, and was not entitled
to absolute quasi-judicial immunity.

    The panel reversed the district court’s denial of the
marshal’s qualified immunity defense. The panel concluded
that on the basis of the allegations in the complaint, it was not
beyond debate, at the time the marshal acted, that the amount
of force he employed violated the Constitution.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BROOKS V. CLARK COUNTY                              3

                             COUNSEL

Matthew Christian (argued), Deputy District Attorney; Steven
B. Wolfson, District Attorney; Clark County District
Attorney’s Office, Las Vegas, Nevada; for Defendants-
Appellants.

Cal J. Potter, III (argued) and C.J. Potter, IV, Potter Law
Offices, Las Vegas, Nevada, for Plaintiff-Appellee.


                             OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether a courtroom marshal is entitled
to invoke absolute immunity as a defense to the allegation
that he used excessive force when executing a judge’s order
to remove a disruptive individual from her courtroom. If he
is not, we must decide whether qualified immunity insulates
him from having to pay damages for his allegedly
unconstitutional conduct.

                                    I

                                   A

    Adam Brooks is a bail enforcement agent who owns Las
Vegas Fugitive Recovery, a bail enforcement agency licensed
in Nevada.1 On October 4, 2011, Brooks and two fellow bail


  1
    Because this case has not advanced past the motion to dismiss stage,
we recite the facts as alleged in Brooks’s complaint, and assume them to
be true. See, e.g., Harris v. Rand, 682 F.3d 846, 850–51 (9th Cir. 2012).
4                   BROOKS V. CLARK COUNTY

agents—John Kevin Smith and Matthew Penny—arrived at
the Regional Justice Center in Las Vegas. They were in
pursuit of Malena Reed and Mary Beth Lourcey, two women
charged with conspiracy to make a bomb threat who were
then appearing in the Justice Court, in the courtroom of
Justice of the Peace Deborah Lippis, to waive their right to a
preliminary hearing.2

    Brooks and his two compatriots were intent on taking
Reed and Lourcey into custody, apparently at the behest of
AIA Surety, a bail bond insurance company, because the
ladies had allegedly failed to keep the company apprised of
their whereabouts. Judge Lippis was having none of it;
although she refused to exonerate the ladies’ bonds, she told
Smith flatly that “[t]hese ladies aren’t fugitives” and “are not
to be taken into custody” until the bond insurance company
had filed a proper motion with the district court.

    Smith, unhappy with Judge Lippis’s instructions, told the
ladies they could not leave until he had a chance to make a
phone call to his superiors. “No,” Judge Lippis said, turning
to her marshal, Jim Keener: “Jim, go out there and tell him he
cannot tell those people what to do, that they are free to go,
and ask him if he’d like me to take him into custody.”
Undeterred, Smith began citing case law to Keener, while he
and Penny remained in the hallway, evidently menacing Reed
and Lourcey with the threat of arrest upon their exiting the
courtroom.



    2
   In addition to the facts alleged in the complaint, we will also consider
the transcript from Judge Lippis’s courtroom on the date in question. See
Mullis v. U.S. Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987); Fed. R.
Evid. 201(b).
                BROOKS V. CLARK COUNTY                       5

    Judge Lippis tried to resume the court’s business by
taking up a different matter, but Smith interrupted the
proceedings, calling out the name of a Nevada statute (Nev.
Rev. Stat. § 178.526) that describes a surety’s state-law
power to authorize bail enforcement agents to arrest a
defendant on its behalf. Judge Lippis, understandably
agitated, pronounced Smith “under arrest for disrupting this
court” and for “failing to follow the lawful orders of the
court. In you go.” Instead of backing down, however, Smith
tried to pass his phone to Penny, who was still waiting
outside. “Unbelievable,” Judge Lippis declared, giving
Penny “the same orders” she had given Smith, namely, that
“[t]hese women are not to be arrested.” Addressing the duo,
Judge Lippis admonished them: “you’ve stopped my entire
court proceedings with the behavior, both of you. . . . [Smith]
was yelling in the hallway and I heard him citing law to my
marshal. He failed every—he refused to follow every order
I entered.” Judge Lippis reiterated her order that Reed and
Lourcey “are not to be arrested, they are not.” She then
dismissed Penny. Turning back to Smith, Judge Lippis stated
“[i]t’s clear to me that you have absolutely no respect for the
court process and that you’re going to do exactly what you
want to do.” She ultimately decided to release Smith from
custody, but with the warning that “if you ever pull this
garbage in this courtroom or any other courtroom again, . . .
you will stay in custody.”

    Thinking the coast was at last clear, Judge Lippis tried to
resume court business. But then Brooks entered the scene.
“It’s illegal what you guys are doing here,” he declared. “Get
out of my courtroom,” Judge Lippis replied. “Out, out, out.”
“Your honor, I’m taking names because it’s illegal,” Brooks
carried on. “We’re a licensed bail enforcement company.
I’m a retired police officer here. What you’re doing is illegal
6                BROOKS V. CLARK COUNTY

and I’m going to be suing your—everybody here.” Brooks
repeatedly spoke over Judge Lippis as she asked him to
“[p]lease leave,” even blurting out the same Nevada statute
Smith had cited earlier.

    At this point Judge Lippis turned to Marshal Keener,
asking him to “please escort this nice gentleman out of the
courtroom.” Still refusing to cooperate, Brooks declared that
he was a “retired police officer.” “I don’t care who you are,”
Keener replied, “[l]et’s go.”

    According to Brooks’s complaint, Keener then “shoved”
him through the courtroom’s double doors, “injuring [his]
back.” Brooks further alleges that he was taken to a hospital
for treatment. He does not allege any details about whatever
injuries he sustained.

                               B

   Brooks and Smith filed this lawsuit together under
42 U.S.C. § 1983, naming various defendants, including
Keener in his individual capacity. The complaint seeks only
damages. Upon motion by Keener, the district court
dismissed most of their suit, and Smith is not a party to this
appeal.

    The only issue before us is whether the district court erred
by refusing to dismiss Brooks’s claim that Keener used
excessive force, in violation of the Fourth Amendment, when
he removed Brooks from Judge Lippis’s courtroom. Keener
moved to dismiss on the theory that he was entitled to
absolute, quasi-judicial immunity, or, if not, qualified
immunity. The district court rejected both arguments.
Keener timely appealed. We have jurisdiction under
                 BROOKS V. CLARK COUNTY                       7

28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526–27
(1985); Behrens v. Pelletier, 516 U.S. 299, 307 (1996).

                               II

    Keener first argues that he should be absolutely immune
from having to pay damages for the way in which he carried
out Judge Lippis’s instruction to escort Brooks out of her
courtroom.

    We have never held that courtroom officials—bailiffs,
marshals, and the like—receive absolute immunity whenever
they act pursuant to a judge’s order, regardless of whether
they execute such order in a way that deviates from what the
judge commanded. The circuits are divided on the question.
Compare Richman v. Sheahan, 270 F.3d 430, 438–39 (7th
Cir. 2001) (rejecting absolute immunity), and Martin v. Bd.
of Cty. Comm’rs, 909 F.2d 402, 404–05 (10th Cir. 1990)
(same), with Martin v. Hendren, 127 F.3d 720, 721–22 (8th
Cir. 1997) (holding such officials do have absolute
immunity).

                              A

    Absolute immunity is an extraordinary attribute. Those
who act while clad in its armor cannot be held liable for
damages under any circumstances, even if they violate clearly
established federal rights, and even if they do so intentionally
or maliciously. E.g., Pierson v. Ray, 386 U.S. 547, 554
(1967); Briscoe v. LaHue, 460 U.S. 325, 331–32 (1983).
Absolute immunity means such officials never have to justify
their actions; it all but guarantees swift dismissals under Rule
12(b)(6), thereby sparing its beneficiaries the many different
costs (pecuniary and otherwise) that litigation entails. The
8                  BROOKS V. CLARK COUNTY

upside is that officials acting with absolute immunity may
discharge their duties with undampened ardor, and all of
us—not only, or even primarily, the officials—are better off
as a result. The most obvious downside is that “it would be
monstrous to deny recovery” in cases where an official “is in
fact guilty of using his powers to vent his spleen upon others,
or for any other personal motive not connected with the
public good.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.
1949) (Hand, J.). But in some contexts, we are willing to
tolerate the denial of individually effective remedies because
the harm of such episodic injustices is outweighed by the
systemic benefits a well-calibrated immunity regime
engenders.

    Judges are among those officials who “have long enjoyed
a comparatively sweeping form of immunity,” which has
been justified on the theory that it helps “protect[] judicial
independence by insulating judges from vexatious actions
prosecuted by disgruntled litigants.” Forrester v. White,
484 U.S. 219, 225 (1988).3 The need to “free[] the judicial
process of harassment or intimidation” has led courts to
extend absolute judicial immunity beyond the judges
themselves, including “to Executive Branch officials who
perform quasi-judicial functions.” Id. at 225–26. In all cases,
the Supreme Court has emphasized that “immunity is
justified and defined by the functions it protects and serves,
not by the person to whom it attaches.” Id. at 227.



    3
     That being said, a judge does not receive absolute immunity for
“nonjudicial actions, i.e., actions not taken in the judge’s judicial
capacity,” and a judge does not receive absolute immunity “for actions,
though judicial in nature, taken in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam).
                BROOKS V. CLARK COUNTY                       9

    The Supreme Court has also made clear that “[t]he
proponent of a claim to absolute immunity bears the burden
of establishing the justification for such immunity.” Antoine
v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993). The
justification must take care to explain why the official hoping
to secure absolute immunity would not be sufficiently
shielded by qualified immunity, which already affords
officials considerable leeway to perform their jobs without
fear of personal liability. Indeed, as the Court has explained,
“[t]he presumption is that qualified rather than absolute
immunity is sufficient to protect government officials in the
exercise of their duties. We have been ‘quite sparing’ in our
recognition of absolute immunity, and have refused to extend
it any ‘further than its justification would warrant.’” Burns
v. Reed, 500 U.S. 478, 486–87 (1991) (quoting Forrester,
484 U.S. at 224 and Harlow v. Fitzgerald, 457 U.S. 800, 811
(1982)). Against the backdrop of qualified immunity, the
question in any given context is always what marginal costs
and benefits society would stand to incur by outfitting the
particular official with an additional layer of protection.

                              B

    In this case, Brooks has alleged that Keener violated his
Fourth Amendment rights by using excessive force to remove
him from Judge Lippis’s courtroom. And the allegation is
quite clear that Judge Lippis did not order Keener to use
excessive force; instead, the allegation is that Keener acted
beyond the scope of Judge Lippis’s express and implied
instructions.
10                  BROOKS V. CLARK COUNTY

                                    1

    Fleshing out the functional analysis underlying judicial
and quasi-judicial immunity, the Supreme Court has
instructed that “the ‘touchstone’ for the doctrine’s
applicability has been ‘performance of the function of
resolving disputes between parties, or of authoritatively
adjudicating private rights.’ When judicial immunity is
extended to officials other than judges, it is because their
judgments are ‘functional[ly] comparab[le]’ to those of
judges.” Antoine, 508 U.S. at 435–36 (quoting Burns,
500 U.S. at 500 (Scalia, J., concurring in the judgment in part
and dissenting in part) and Imbler v. Pachtman, 424 U.S. 409,
423 n.20 (1976)).4

    Such terms cannot be used to describe the function
Keener was performing when he removed Brooks from Judge
Lippis’s courtroom. He makes no effort to argue that when
a courtroom marshal seizes an unruly litigant or spectator, the
marshal is performing a task comparable to that of a judge,
and it is clear to us that he is not. As we explained several
decades ago, in a truly extraordinary case in which a judge
allegedly came off the bench and physically beat someone
who refused an order to leave his courtroom:

         The decision to personally evict someone
         from a courtroom by the use of physical force


 4
   The Court has also noted that “[i]n determining which officials perform
functions that might justify a full exemption from liability, ‘we have
undertaken a considered inquiry into the immunity historically accorded
the relevant official at common law and the interests behind it.’” Antoine,
508 U.S. at 432 (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)).
Keener has not attempted an historical analysis.
                 BROOKS V. CLARK COUNTY                      11

        is simply not an act of a judicial nature, and is
        not such as to require insulation in order that
        the decision be deliberately reached. . . .
        More importantly, we cannot believe that the
        purpose of the judicial immunity doctrine—to
        promote ‘principled and fearless decision-
        making’—will suffer in the slightest if it is
        held that judges who physically assault
        persons in their courtrooms have no automatic
        immunity.

Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir. 1974). So
too here. Indeed, we even opined that had the judge in
Gregory “summoned a sheriff,” and “had the sheriff assaulted
[the plaintiff], the sheriff would not have been entitled to
claim absolute immunity but only the defense that he was
acting in good faith” (that is, with qualified immunity). Id. at
64–65.

    Unable to analogize the function he performed here with
that of a judge, Keener instead emphasizes that marshals do
indispensable work in helping to exert control over the
courtroom. We readily agree, but that alone is not enough to
win them a judge’s immunity. Indeed, in Antoine the Court
explicitly rejected the proposition that absolute quasi-judicial
immunity should be extended to someone merely because his
function “is extremely important or . . . ‘indispensable to the
appellate process.’” 508 U.S. at 436–37. Likewise, in
Forrester the Court refused to give a judge absolute
immunity for his hiring and firing decisions, even though
such “[a]dministrative decisions . . . may be essential to the
very functioning of the courts.”           484 U.S. at 228.
Notwithstanding the importance of a given function to the
administration of justice, the official engaged in it does not
12               BROOKS V. CLARK COUNTY

deserve absolute quasi-judicial immunity if “by the very
nature of his work [he] performs no judicial function.”
Antoine, 508 U.S. at 436 n.11 (emphasis added).

    Nor do we perceive any danger that declining to give
Keener absolute immunity will cause him to second guess the
presiding judge or will otherwise erode the trust that exists,
and must exist, between them. Keener is exposed to liability
(but still protected by qualified immunity) only because he
allegedly went beyond what the judge ordered. Thus,
rejecting absolute immunity in a case like Keener’s does not
create any incentive for him to hesitate when told to do
something; it merely incentivizes him to stay within the
bounds of his orders.

    Moreover, as explained above, the choice we face is not
between absolute immunity and no immunity at all. Rather,
the proper question is what marginal incentives absolute
immunity would create as compared to qualified immunity.
Keener has given no argument as to why qualified immunity
is not able to create optimal levels of trust and accountability
in the judge-marshal relationship—or, more generally, to
ensure that officials like him act with optimal vigor—and we
see no reason to pile more immunity on top of the already
robust qualified immunity Keener indisputably enjoys. In
this regard, we agree with the Seventh Circuit’s observation
that “the need for immediate action in the face of potentially
fatal consequences is not a situation unique to courtrooms,
and yet qualified immunity (which takes into account the
particular circumstances faced by the officers) is the rule for
law enforcement officers of all kinds, including secret service
officers charged with guarding the President. That the
conduct occurs in the courtroom, does not, in our opinion,
                    BROOKS V. CLARK COUNTY                                13

justify our applying a different rule.” Richman, 270 F.3d at
438 (citations omitted).5

                                      2

    Keener’s counterargument places great weight on Mireles
v. Waco, a somewhat peculiar case in which the Supreme
Court held that a judge retains absolute immunity even when
he expressly and specifically orders a police officer to use
excessive force to seize a person in his courtroom. See
502 U.S. 9, 12–13 (1991) (per curiam). The Court did not
decide whether the officer who carried out such a bizarre
order—doing as he was told and no more—would also
receive absolute immunity. But even assuming he would,6 it
would do Keener little good, for that is not what allegedly
happened here. As noted above, Keener is alleged to have



  5
    When crafting the law of official immunity, it is wholly proper to focus
our analysis on the behavioral incentives a given level of immunity is
likely to have on the officers in question, see, e.g., Forrester, 484 U.S. at
223–24, but we should also bear in mind the possibility that immunity
doctrines might influence the identity of officeholders in the first instance,
cf. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (warning that the threat
of citizen lawsuits might “deter[] . . . able citizens from acceptance of
public office”). Such screening effects can be for good or for ill, if, for
example, an overly protective immunity regime entices prospective
officeholders who are less than public spirited and who would otherwise
be deterred from seeking office. On balance, there are some functions for
which a (remote) threat of civil liability is preferable to no threat at all.
  6
    We have previously suggested that absolute immunity does protect
those “who faithfully execute valid court orders.” Coverdell v. Dep’t of
Soc. & Health Servs., 834 F.2d 758, 764 (9th Cir. 1987); see also id. at
765 (“Coverdell has neither alleged nor shown that in executing the order,
McLaughlin exceeded its scope or acted improperly in any other way.”).
14               BROOKS V. CLARK COUNTY

employed more force than Judge Lippis ordered him to use.
That distinction makes an enormous difference.

    The Mireles Court reasoned that because a judge’s order
to seize a litigant is by nature a judicial decision, the blanket
immunity required to insulate such decisions from collateral
attacks must be expansive enough to cover even those that are
in error or otherwise outside the bounds of a judge’s proper
authority. Id. However persuasive that logic might be, it
does not support stretching absolute immunity to embrace the
facts alleged here. The reason is that a judge’s order to seize
someone carries an implicit caveat that the officer follow the
Constitution in doing so. A marshal’s decision to go beyond
those limits is not a judicial decision, and allowing such
decision to be examined in a suit for damages would not
permit a collateral attack on the judge’s own decision; nor
would it make the marshal into a “lightning rod” for
vexatious litigants whose real gripe is with the judge himself.
Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno,
547 F.2d 1, 3 (1st Cir. 1976). In our view, extending absolute
immunity to a marshal’s unauthorized acts would do little if
anything to further the important goals underlying the Mireles
decision. We are satisfied that neither precedent nor first
principles justify giving courtroom officials absolute
immunity when they allegedly use force in excess of what
their judge commanded and the Constitution allows.

                               III

    In addition to invoking absolute immunity, Keener argues
that Brooks’s suit against him should be dismissed on
grounds of qualified immunity.
                 BROOKS V. CLARK COUNTY                       15

                               A

    The Supreme Court has remarked several times that in
Fourth Amendment excessive force cases, “qualified
immunity operates ‘to protect officers from the sometimes
hazy border between excessive and acceptable force.’”
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)
(quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). To that
end, qualified immunity shields an officer from damages
liability when it was not “clearly established that the Fourth
Amendment prohibited [his] conduct in the ‘situation [he]
confronted.’” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)
(per curiam) (quoting Brosseau, 543 U.S. at 199–200).
Under that standard, if “we cannot say that only someone
‘plainly incompetent’ or who ‘knowingly violate[s] the law’
would have . . . acted as [the officer] did,” then he is entitled
to qualified immunity. Id. at 310 (first alteration in original)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

    It bears emphasizing that our analysis must always be
trained on the particular facts and circumstances under
review; to overcome a qualified immunity defense, it is never
enough simply to recite the general proposition that the
Fourth Amendment prohibits officers from using an amount
of force that is objectively unreasonable. Rather, “[t]he
dispositive question is ‘whether the violative nature of [the
officer’s] particular conduct is clearly established.’” Id. at
308 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
And “[t]his inquiry ‘must be undertaken in light of the
specific context of the case, not as a broad general
proposition.’” Id. (emphasis added) (quoting Brosseau,
543 U.S. at 198). Although the Supreme Court “has rejected
the idea that ‘an official action is protected by qualified
immunity unless the very action in question has previously
16              BROOKS V. CLARK COUNTY

been held unlawful,’” id. at 314 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)), it is always the case
that “existing precedent must have placed the statutory or
constitutional question beyond debate,” al-Kidd, 563 U.S. at
741. “[T]he crux of the qualified immunity test is whether
officers have ‘fair notice’ that they are acting
unconstitutionally.” Mullenix, 136 S. Ct. at 314 (quoting
Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

                              B

    Brooks alleges that Keener employed excessive force by
shoving him through the courtroom’s double doors. On the
merits, such excessive force claims are governed by an
objective reasonableness standard derived from the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 395–97
(1989). To determine whether state officials used excessive
force, courts balance “‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Courts
must examine the “facts and circumstances of each particular
case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. Courts “also
consider, under the totality of the circumstances, the quantum
of force used to arrest the plaintiff, the availability of
alternative methods of capturing or detaining the suspect, and
the plaintiff’s mental and emotional state.” Luchtel v.
Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) (citations
omitted).
                BROOKS V. CLARK COUNTY                      17

                              C

    In light of these principles, we must ask the following
question: assuming the allegations Brooks has made are true,
was it “beyond debate,” at the time Keener seized him, that
the amount of force Keener employed violated the
Constitution? If the answer is no—if Keener’s actions did
not clearly violate Brooks’s rights under the Fourth
Amendment—then Keener is entitled to qualified immunity,
and his motion to dismiss must be granted. Mullenix, 136 S.
Ct. at 309 (“The relevant inquiry is whether existing
precedent placed the conclusion that Mullenix acted
unreasonably in these circumstances ‘beyond debate.’”
(quoting al-Kidd, 563 U.S. at 741)).

                              1

    Given the standard governing excessive force claims, the
allegations in Brooks’s complaint are not sufficient to survive
a qualified immunity defense even at the motion to dismiss
stage. Assuming all of Brooks’s allegations are true, it still
cannot be said that Keener’s use of force was indisputably
unconstitutional. That is, a reasonable marshal could have
believed that the Fourth Amendment permitted him to use the
amount of force Brooks claims Keener employed, even if the
circumstances were exactly as Brooks describes. For that
reason alone, Keener is entitled to qualified immunity, and
the district court should have granted his motion to dismiss.

    Brooks’s complaint states merely that “Keener forcefully
shoved [him] through double-doors of a courtroom injuring
[his] back.” His affidavit is similarly barebones, saying only
that Keener “grabb[ed] [him] and forcefully push[ed] [him]
out of the courtroom.” Moreover, the transcript of
18              BROOKS V. CLARK COUNTY

proceedings in front of Judge Lippis demonstrates that before
Keener shoved Brooks, Brooks had at least twice defied the
judge’s order to leave; had continued to resist Keener’s verbal
instructions to leave; and that two of Brooks’s compatriots
had similarly disrupted the court, harassing and intimidating
two women in the courtroom, all in defiance of Judge
Lippis’s orders. Given the chaos in the courtroom and the
undisputed evidence that Brooks was intent on disobeying the
court’s instructions—and given his extremely vague and
insubstantial allegations about his injury—it is simply not
“beyond debate” that Keener employed an unreasonable
amount of force.

    Indeed, the Supreme Court has stated more than once
that—on the merits—“[n]ot every push or shove, even if it
may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Saucier,
533 U.S. at 209 (quoting Graham, 490 U.S. at 396).
Similarly, the Court has instructed that “[i]f an officer
reasonably, but mistakenly, believed that a suspect was likely
to fight back, for instance, the officer would be justified in
using more force than in fact was needed.” Id. at 205. The
events here fit that description. And just as important, Brooks
has cited nothing at all to establish that existing precedent
silences all debate about whether Keener’s shove violated the
Fourth Amendment.

    Not only is there a lack of authority on Brooks’s side, but
several cases show that Keener had “substantial grounds . . .
to have concluded he had legitimate justification under the
law for acting as he did.” Id. at 208. For instance, in Ward
v. Gates, 52 F. App’x 341, 344–45 (9th Cir. 2002)
(unpublished), a panel of our court rejected an excessive force
claim on the merits where the plaintiff alleged that the
                 BROOKS V. CLARK COUNTY                      19

officers “unreasonably pointed their weapons at her,
handcuffed her roughly, [and] smashed her arm on [a] desk.”
Id. at 344. The excessive force claim failed on the merits
despite the fact that “there was no need for the officers to use
any force at all,” for the officers were “mistaken in their
belief that [the plaintiff and her compatriot] were dangerous.”
Id.; see also, e.g., Crumley v. City of St. Paul, 324 F.3d 1003,
1008 (8th Cir. 2003) (“Accepting Crumley’s version of the
facts as true, we conclude no reasonable jury could have
found the police officer used excessive force by pushing or
shoving Crumley to effect the arrest.”). If the officers’
conduct in such cases was justified on the merits, then
Keener’s conduct here cannot be said to be indisputably
unconstitutional—at worst, there is room for debate as to
whether Keener’s conduct complied with the Fourth
Amendment. “Ultimately, whatever can be said of the
wisdom of [Keener’s] choice, this Court’s precedents do not
place the conclusion that he acted unreasonably in these
circumstances ‘beyond debate.’” Mullenix, 136 S. Ct. at 311
(quoting al-Kidd, 563 U.S. at 741). That is enough to win
him a qualified immunity defense.

                               2

    The district court concluded otherwise, but its analysis
betrays a fundamental misunderstanding about how to assess
a qualified immunity defense to an excessive force claim. In
denying Keener’s motion to dismiss based on qualified
immunity, the district court reasoned that “Keener’s conduct
could be inferred to have violated objective standards of
reasonableness regarding the removal of Mr. Brooks from the
courtroom.” Brooks takes the same tack, arguing simply that
“the well-pled allegations . . . set forth that Keener’s actions
were not objectively reasonable.” Those propositions may be
20              BROOKS V. CLARK COUNTY

true, but they are not enough to defeat Keener’s qualified
immunity defense. The district court and Brooks’s analysis
says only that, on the merits, Keener’s conduct may have
violated the Fourth Amendment. But, crucially, they both
have failed to consider the distinct question discussed above:
whether, based on the allegations in the complaint, Keener’s
conduct could be inferred to have violated a “clearly
established” right. The answer is no, because as we have
explained, the allegations in the complaint do not plausibly
place the illegality of Keener’s conduct “beyond debate.”

    In other words, the district court here committed the same
error the Supreme Court corrected in Saucier v. Katz:
equating the excessive force question on the merits (did
Keener employ an objectively unreasonable amount of
force?) with the qualified immunity question (did existing
law remove any doubt that such force was objectively
unreasonable?). The two questions are not the same. See
Saucier, 533 U.S. at 202–03 (rejecting the proposition “that
qualified immunity is merely duplicative in an excessive
force case”). The Court has made clear that to defeat
qualified immunity, Brooks must not only allege that Keener
used an unreasonable amount of force, but also that no
reasonable officer could disagree that Keener used an
unreasonable amount of force. Id. at 202 (“The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”). As we have already discussed, Brooks’s
allegations do not suffice to overcome Keener’s qualified
immunity defense. The complaint should have been
dismissed on those grounds.
                BROOKS V. CLARK COUNTY                     21

                             IV

    For the foregoing reasons, we AFFIRM the district
court’s denial of Keener’s absolute immunity defense and
REVERSE the district court’s denial of his qualified
immunity defense. Appellee’s motion to dismiss, filed on
April 16, 2015, is denied. Each party shall bear its own costs
on appeal.
