Shelly J. Ioane, Plaintiff-Appellee,
Jeff Hodges; Michelle Casarez, Federal Officer; Brian Applegate, Federal Officer; Kent Spjute, Federal Officer, Defendants, and Jean Noll, Defendant-Appellant.
and Submitted April 13, 2018 Pasadena, California
from the United States District Court for the Eastern
District of California Anthony W. Ishii, Senior District
Judge, Presiding D.C. No. 1:07-cv-00620-AWI-EPG
Gretchen M. Wolfinger (argued), Jonathan S. Cohen, and
Gilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,
Principal Deputy Assistant Attorney General; Diana L. Erbsen,
Deputy Assistant Attorney General; Tax Division/Appellate
Section, United States Department of Justice, Washington,
D.C.; for Defendant-Appellant.
Beverly (argued) and Norvik Azarian (argued), Certified Law
Students; Paula M. Mitchell, Supervisor, Loyola Law School;
E. Martin Estrada, Munger Tolles & Olson LLP, Los
Angeles, California; for Plaintiff-Appellee.
Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges,
and Donald W. Molloy, [*] District Judge.
panel affirmed the district court's order, on summary
judgment, denying qualified immunity to an Internal Revenue
Service Agent in an action alleging that the agent violated
plaintiff's Fourth Amendment right to bodily privacy
when, during the lawful execution of a search warrant at
plaintiff's home, the agent escorted plaintiff to the
bathroom and monitored her while she relieved herself.
panel held that weighing the scope, manner, justification,
and place of the search, a reasonable jury could conclude
that the agent's actions were unreasonable and violated
plaintiff's Fourth Amendment rights. The agent's
general interests in preventing destruction of evidence and
promoting officer safety did not justify the scope or manner
of the intrusion into plaintiff's most basic subject of
privacy, her naked body. The panel further held that a
reasonable officer in the agent's position would have
known that such a significant intrusion into bodily privacy,
in the absence of legitimate government justification, was
unlawful. The agent therefore was not entitled to qualified
in the judgment, Judge Bea stated that he agreed with the
majority's ultimate conclusion that the district court
did not err in denying the agent's motion for summary
judgment regarding plaintiff's claim that she violated
plaintiff's clearly established constitutional rights.
However, because he disagreed with the majority's holding
that the agent's actions violated plaintiff's clearly
established right to bodily privacy, Judge Bea wrote
MURGUIA, CIRCUIT JUDGE:
Shelly Ioane filed suit for damages under 42 U.S.C. §
1983 against Internal Revenue Service (IRS) Agent Jean Noll.
Shelly alleged that Agent Noll violated her Fourth Amendment
right to bodily privacy when, during the lawful execution of
a search warrant at her home, Agent Noll escorted Shelly to
the bathroom and monitored Shelly while she relieved herself.
Agent Noll moved for summary judgment, claiming that she was
entitled to qualified immunity. The district court denied
Agent Noll's motion, and she appeals.
jurisdiction over this interlocutory appeal, Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985), and we affirm.
2006, Michael Ioane, Sr. ("Michael") was under
investigation for criminal tax fraud and conspiracy. At the
time, Agent Noll was a Supervisory Special Agent for the IRS
Criminal Investigation Division, and she was asked to assist
in executing a search warrant as part of the investigation
regarding Michael. Prior to executing the search warrant,
agents learned that the Ioanes had registered weapons and
that these weapons likely would be at their home. The search
warrant authorized the IRS agents to search the Ioane
residence for, among other things, records, computers,
computer-related equipment, and computer storage devices.
8, 2006, agents from the IRS Criminal Investigation Division,
including Agent Noll, arrived at the Ioane residence to
conduct the search. Only Michael and Shelly were home at the
time. The IRS agents informed Michael and Shelly that they
could stay on the premises if they cooperated with the agents
conducting the search. However, the agents informed the
Ioanes that if they chose to leave to the premises, they
would not be allowed to return. Both Ioanes stayed on the
premises, and sat in the kitchen while the agents conducted
point early in the search, Michael needed to use the
bathroom. A male agent escorted Michael to the bathroom and
conducted a quick search of the bathroom area-opening a
couple of drawers and looking in the shower-before exiting
and closing the door behind him. The male officer stood
outside the closed bathroom door while Michael relieved
about a half an hour into the search, Shelly told the agents
that she needed to use the bathroom. Agent Noll escorted
Shelly to the bathroom, and when she stepped inside and
started to close the door, Agent Noll told Shelly that she
had to come inside, too. Shelly asked Agent Noll to wait
outside, but Agent Noll resisted her plea. Agent Noll told
Shelly to remove her clothing so that she could make sure
Shelly did not have anything hidden on her person. When
Shelly objected, Agent Noll explained that she needed to make
sure Shelly did not hide or destroy anything, and that this
was standard procedure. Shelly, who was wearing a long
sundress, pulled up her dress so Agent Noll could see that
she was not hiding anything. According to Shelly, Agent Noll
made Shelly hold up her dress while she relieved herself,
using one hand to hold up her dress and the other to pull her
underwear down. Agent Noll faced Shelly while Shelly used the
bathroom, and when Shelly was finished, Agent Noll escorted
her back to the kitchen.
appeal, Agent Noll claims that the district court erred when
it determined that she is not entitled to qualified immunity
from Shelly's invasion of bodily privacy claim. Agent
Noll contends that her actions were objectively reasonable,
and therefore did not violate Shelly's Fourth Amendment
rights. Further, Agent Noll argues that even if her actions
were not reasonable, the law was not so clearly established
in 2006 that a reasonable officer in her position would have
known that her actions were unlawful.
review a district court's legal conclusion that an
official is not entitled to qualified immunity de novo.
Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)
("Our interlocutory jurisdiction to review a denial of
qualified immunity is limited exclusively to questions of
law, which we review de novo.").
immunity balances "the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably."
Pearson v. Callahan, 555 U.S. 223, 231 (2009). To
balance these competing interests, we perform a two-part
test. Saucier v. Katz, 533 U.S. 194, 201 (2001);
Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th
Cir. 2010). An officer is entitled to qualified immunity
under this test unless (1) the facts, construed in the light
most favorable to the plaintiff, demonstrate that the
officer's conduct violated a constitutional right, and
(2) the right was clearly established at the time of the
asserted violation. Karl v. City of Mountlake
Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012);
Saucier, 533 U.S. at 201. If there is no
constitutional violation, the inquiry ends and the officer is
entitled to qualified immunity. Saucier, 533 U.S. at
201. On the other hand, if we determine that the alleged
facts establish a constitutional violation, we proceed to
part two of the test to determine whether the right at issue
was clearly established. Id. While we have
discretion to begin our analysis with either part of the
test, Pearson, 555 U.S. at 236, it is nevertheless
beneficial to begin with the first part of the test because
it "promotes the development of constitutional precedent
and is especially valuable with respect to questions that do
not frequently arise in cases in which a qualified immunity
defense is unavailable." Plumhoff v. Rickard,
134 S.Ct. 2012, 2020 (2014) (quoting Pearson, 555
U.S. at 236).
begin with the first part of the qualified immunity test.
While the Ninth Circuit never has articulated a standard for
when an officer's intentional viewing of an
individual's naked body is constitutionally permissible
under the Fourth Amendment, "[t]he touchstone of the
Fourth Amendment is reasonableness." Florida v.
Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v.
United States, 389 U.S. 347, 360 (1967)). Determining
the reasonableness of a particular search involves balancing
the degree to which the search intrudes upon an
individual's privacy against the degree to which the
search is needed to further legitimate governmental
interests. United States v. Knights, 534 U.S. 112,
118-19 (2001). The required factors to consider are:
"(1) the scope of the particular intrusion, (2) the
manner in which it is conducted, (3) the justification for
initiating it, and (4) the place in which it is
conducted." Byrd v. Maricopa Cty. Sheriff's
Dep't, 629 F.3d 1135, 1141 (9th Cir. 2011) (citing
Bell v. Wolfish, 441 U.S. 520, 559 (1979) (internal
quotation marks omitted)).
cases from our Circuit inform the scope and manner of the
intrusion here. We first recognized the right to bodily
privacy in 1963. In York v. Story, we held that a
plaintiff had alleged sufficient facts to state an invasion
of bodily privacy claim under § 1983 when she alleged
that three police officers took and distributed nude photos
of her when she came to the station to report that she had
been assaulted. 324 F.2d 450, 452, 455-56 (9th Cir. 1963).
According to the allegations in the complaint, the officers
had insisted that it was necessary to take photos of the
plaintiff for her case, and directed her to undress in a room
of the police station despite the plaintiff's objections
and insistence that she did not have bruises that required
her to be photographed in the nude. Id.at 452.
Recognizing that the "naked body" is the ...