Ioane v. Hodges

• Decision Date: 10 September 2018
• Docket Number: No. 16-16089,16-16089
• Citation: 939 F.3d 945
• Parties: Shelly J. IOANE, Plaintiff-Appellee, v. Jeff HODGES; Michelle Casarez, Federal Officer; Brian Applegate, Federal Officer; Kent Spjute, Federal Officer, Defendants, and Jean Noll, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

939 F.3d 945

Shelly J. IOANE, Plaintiff-Appellee,

v.Jeff HODGES; Michelle Casarez, Federal Officer; Brian Applegate, Federal Officer; Kent Spjute, Federal Officer, Defendants,andJean Noll, Defendant-Appellant.

No. 16-16089

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2018 Pasadena, California

Filed September 10, 2018

Amended September 19, 2019

ORDER

The opinion and concurrence filed on September 10, 2018, and appearing at 903 F.3d 929, is hereby amended. An amended opinion and concurrence is filed herewith.

The parties are hereby granted leave to file a petition for rehearing and/or suggestion for rehearing en banc, pursuant to FRAP 40 and G.O. 5.3(a).

MURGUIA, Circuit Judge:

Plaintiff Shelly Ioane filed a Bivens suit 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and we affirm.

Background

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 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.

Analysis

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, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). To balance these competing interests, we perform a two-part test. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (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, 121 S.Ct. 2151. If there is no constitutional violation, the inquiry ends and the officer is entitled to qualified immunity. Saucier , 533 U.S. at 201, 121 S.Ct. 2151. 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, 129 S.Ct. 808, 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 , 572 U.S. 765, 774, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (quoting Pearson , 555 U.S. at 236, 129 S.Ct. 808 ).

1. Bivens Claim

Before reaching the issue of qualified immunity, the first question we must address is whether Shelly may bring a Bivens suit against Agent Noll. Hernandez v. Mesa , ––– U.S. ––––, 137 S. Ct. 2003, 2006, 198 L.Ed.2d 625 (2017) (whether Bivens applies "is ‘antecedent’ to the other questions presented") (quoting Wood v. Moss , 572 U.S. 744, 757, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) ).

In 1971, the Supreme Court recognized for the first time an implied right of action against federal officers for constitutional violations. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens , the Court held that plaintiff Webster Bivens was entitled to sue federal agents for damages arising out of an unlawful arrest and search, in violation of his Fourth Amendment rights. Id. at 389–90, 91 S.Ct. 1999.

Following Bivens , however, the Supreme Court has repeatedly refused to recognize an implied damages remedy against federal officials. See Rodriguez v. Swartz , 899 F.3d 719, 737 (9th Cir. 2018) (collecting cases). Recently, the Court "made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "This [trend] is in accord with the Court’s observation that it has ‘consistently refused to extend Bivens to any new context or new category of defendants.’ " Id. (quoting Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ).

In Abbasi , the Supreme Court laid out a two-step test for determining when a Bivens claim should be recognized. "[T]he first question a court must ask ... is whether the claim arises in a new Bivens context[.]" Id. at 1864. A case presents a new context if it "is different in a meaningful way from previous Bivens cases decided by th[e Supreme Court]." Id . Abbasi outlined the following non-exhaustive "list of differences that are meaningful enough to make a given context a new one":

A case might differ in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the official action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or [7] the presence of potential special factors that previous Bivens cases did not consider.

Id. at 1859–60.

If the case presents a new Bivens context, then the court proceeds to step two. At step two, a court may extend Bivens in a new context only if two conditions are met. First, "the plaintiff must not have any other adequate alternative remedy." Rodriguez , 899 F.3d at 738. Second, "there cannot be any ‘special factors’ that lead [the court] to believe that Congress, instead of the courts, should be the one to authorize a suit for money damages." Id.

While the Supreme Court has yet to define the term, "special factors," it has explained that "the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the...