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Ioane v. Hodges

United States Court of Appeals, Ninth Circuit

September 10, 2018

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.

          Argued and Submitted April 13, 2018 Pasadena, California

          Appeal 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.

          Ariel 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.

         SUMMARY [**]

         Civil Rights

         The 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.

         The 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 immunity.

         Concurring 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 separately



         Plaintiff 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.[1]

         We have jurisdiction over this interlocutory appeal, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we affirm.


         In 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.

         On June 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 the search.

         At some 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 himself.

         Then, 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.


         On 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.

         We 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.").

         Qualified 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).

         1. Reasonableness

         We 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)).

         Three 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. 452. Recognizing that the "naked body" is the ...

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