STEFAN R. UNDERHILL, District Judge.
On April 19, 2013, the plaintiffs, Daniel Carpenter and Grist Mill Capital, LLC, filed an action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against the defendants, IRS Commissioners Douglas Schulman and Steven Miller;
For the following reasons, I
A Rule 12(b)(6) motion to dismiss for failure to state a claim is designed "merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Under Twombly, "[f]actual allegations must be enough to raise a right to relief above the speculative level," and assert a cause of action with enough heft to show entitlement to relief and "enough facts to state a claim to relief that is plausible on its face." 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to "provide the grounds of his entitlement to relief" through more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely." Id. at 556 (quotation marks omitted).
The following relevant facts are alleged in the Second Amended Complaint (SAC). Carpenter is the owner of several companies, including Grist Mill Capital, LLC ("GMC"), which does business from 100 Grist Mill Road. SAC at ¶ 4. In 2010, Carpenter was being prosecuted in the District of Massachusetts for a matter unrelated to the present case. Id. at ¶ 12. In 2010, the Massachusetts case had been tried to a verdict against Carpenter, reversed on appeal, and Carpenter was in the process of challenging the second verdict against him.
On April 16, 2010, Shaun Schrader, a Special Agent of the Criminal Investigation Unit of the United States Internal Revenue Service, provided an affidavit in support of an application for a warrant to search 100 Grist Mill Road for evidence that Carpenter was engaging in criminal tax offenses, including conspiracy to impede the lawful function of the IRS, 18 U.S.C. § 371, and aiding and assisting the preparation of false income tax returns, 26 U.S.C. § 7206(2).
On April 20, 2010, Schrader and 72 unknown IRS agents (the "John Doe" defendants) executed the search warrant at 100 Grist Mill Road in order to obtain evidence against Daniel Carpenter and GMC. Carpenter alleges that the IRS agents wore "black Kevlar bullet-proof vests and were brandishing automatic weapons" during the execution of the search, which was conducted in the same manner as a SWAT operation. Id. at ¶¶ 8. During the search, Carpenter and the other GMC employees were not informed of which crime they were suspected of committing, nor were they provided with the search warrant affidavit or any other document indicating which crimes were at issue. Id.
During the search, the government seized 322 banker boxes of documents over the course of eighteen hours, a period in excess of what was authorized by the warrant. Id. at ¶ 9. During the search, the agents held numerous employees against their will for long periods of time and interrogated them. Id. Carpenter was "placed in custody, threatened with handcuffs, and questioned, despite his invocation of his right to have counsel present." Id. at ¶ 10. He was also "threatened with arrest" when he attempted to speak to counsel or leave the room to make a call. Id. Carpenter also alleges that the government "ransacked" his office during the search. Id. at ¶ 28.
Carpenter alleges that Schrader had a duty to supervise the John Doe defendants in their use of force and the manner in which they carried out the search, and that he failed to do so. Id. at ¶¶ 21, 24. Specifically, he alleges that Schrader failed to supervise or instruct the agents on what was appropriate conduct during the search, and that Schrader was either "directly responsible" for the intimidating tactics or "deliberately indifferent" to the possibility that the search would be carried out in an unconstitutional manner. Id. at ¶ 21. Carpenter alleges that Schrader also "consciously disregarded the substantial risk that he had authorized the custodial interrogation" of Carpenter without reading him his Miranda rights in violation of his Fifth and Sixth Amendment rights to have counsel present. Id. at ¶ 28.
Carpenter alleges that Schrader's acts were intentional and motivated by animus against Carpenter because of his reputation as an "anti-government" actor and his litigation against the government in the Massachusetts case. Id. at ¶ 26. Accordingly, Carpenter alleges that the manner in which the search was carried out was deliberately intended to "harass, intimidate and humiliate" him. Id. Carpenter further claims that the IRS has a policy and practice of using armed agents to enforce search warrants for tax documents, despite the fact that the IRS manual "requires investigations to be carried out with the least intrusive means necessary." Id. at ¶ 22; see also id. at ¶ 25. Carpenter does not allege, however, that Schrader had any responsibility for setting IRS policies.
To date, Carpenter and his related entities have not been indicted for the tax offenses alleged in the warrant affidavit.
On April 3, 2014, I heard arguments and ruled on the defendants' first set of motions to dismiss. Schrader's first motion raised issues substantially similar to those raised in his present motion. I granted his motion to dismiss the complaint without prejudice to refiling in the interest of obtaining a more detailed complaint. At that time, I explicitly declined to reach the qualified immunity issue. 1st Mot. to Dismiss Tr. at 47 (doc. 35).
On May 30, 2014, the plaintiffs filed the Second Amended Complaint, (doc. 34), and the defendants, including Schrader, thereafter filed their second set of motions to dismiss (docs. 38 and 41). On December 4, 2014, I held a hearing on the motions to dismiss. I granted in part and denied in part a motion to dismiss filed by Song and Schrader, and specified that I was taking under advisement Schrader's motion to dismiss on qualified immunity grounds. (doc. 51) At that hearing, Schrader explicitly declined to address the new factual allegations that the search warrant affidavit was invalid, asserting that question was better dealt with as a factual question at summary judgment—otherwise, the Fourth, Fifth, and Sixth Amendment arguments were substantially similar to those raised in the instant motion.
With respect to the Fourth Amendment claims arising out of the unreasonable manner of the search, I asked the government whether there was anything alleged in the complaint, or likely to be put forward, indicating that the agents had specific safety concerns that might have justified using heavily-armed agents to conduct the search. 2d Mot. to Dismiss Tr. at 26, 31. The government conceded that there was nothing of that kind alleged in the complaint and suggested it was unlikely that a stronger safety justification would be forthcoming. Id. at 26.
On December 12, 2013, after the initial complaint in this case was filed but before the first motions to dismiss were filed, Carpenter was indicted in the District of Connecticut for his participation in a fraudulent scheme involving stranger-originated life insurance. See United States v. Carpenter, 3:13-cr-226 (RNC) (D. Conn.) [hereinafter, "the STOLI case"]. The indictment resulted from a criminal investigation by the Department of Labor that included a 2011 search of the materials held by the IRS as a result of the 2010 search described above. Accordingly, on September 15, 2014, after the second motions to dismiss were filed, but before they were argued,
On December 24, 2015, Judge Chatigny denied Carpenter's motion to suppress. STOLI case (doc. No 155). In relevant part, he found that the 2010 search warrant was "sufficiently particularized." Id. at 9-10. In making that finding, he rejected Carpenter's arguments that the warrant was defective because the supporting affidavit was not attached to it or because it permitted a large amount of material to be seized. Id. at 11 n.4. He found that the 2010 warrant also was not overbroad, observing that "uncontested statements" in Schrader's supporting affidavit adequately established probable cause for the search. Id. at 12-13. He also denied Carpenter's motion for a Franks hearing on the veracity of statements in the 2010 warrant affidavit, both because Carpenter had failed to make a preliminary showing that a false statement was included in the warrant and because the uncontested statements in the warrant nevertheless established probable cause. Id. at 15. Finally, he held that Carpenter had failed to allege facts sufficient to support a claim that the manner in which the search was carried out violated his substantive due process rights. Id. at 18-19. Judge Chatigny did not consider whether the manner in which the search was conducted was unreasonable and thus in violation of the Fourth Amendment.
Carpenter subsequently waived his right to a jury trial, and on June 6, 2016, Judge Chatigny entered a verdict finding Carpenter guilty on all 57 counts of the indictment in that case. Verdict, STOLI case (doc. 212). Sentencing has been continued until Carpenter's post-conviction motions are resolved.
The Second Amended Complaint appears to assert four claims: (1) Schrader violated Carpenter's Fourth Amendment rights by knowingly including false statements in the warrant affidavit; (2) Schrader violated Carpenter's Fourth Amendment rights by planning and supervising an unreasonable search of 100 Grist Mill Road; (3) Schrader violated Carpenter's Fifth Amendment rights by authorizing his custodial interrogation in a manner that created a substantial risk of coerced self-incrimination without the benefit of any attorney or a Miranda instruction; and (4) Schrader violated Carpenter's Sixth Amendment rights by authorizing his custodial interrogation while Carpenter was represented by counsel in the Massachusetts case. At the hearing, Carpenter abandoned several of those claims for the time being. He conceded that, under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), the Fourth Amendment claims based on claims of an invalid warrant are precluded by Judge Chatigny's rulings in the STOLI case. Accordingly, Schrader's motion to dismiss those claims is
Schrader argues that the remaining Fourth Amendment claims,
"Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because qualified immunity provides "immunity from suit rather than a mere defense to liability," Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Saucier v. Katz, 533 U.S. 194, 200-01 (2001)), the court should resolve qualified immunity questions "at the earliest possible stage of a litigation." Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). At the motion to dismiss stage, however, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. See al-Kidd, 563 U.S. at 734.
The Supreme Court has articulated a three-part test for considering a claim of qualified immunity. First,
The Fourth Amendment protects individuals "against unreasonable searches and seizures." "Determining whether the use of force
Precisely because Fourth Amendment jurisprudence develops through a fact-specific examination of particular circumstances rather than immunizing certain kinds of conduct regardless of context, it has long been established that any use of force against a person without justification violates the Fourth Amendment. See, e.g., Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010) (observing in the context of an unjustified use of pepper spray on an arrestee that it was clearly established in this Circuit by at least 2000 "that the use of entirely gratuitous force is unreasonable and therefore excessive"). Put another way, no reasonable officer could believe that the justification for the use of force to accomplish a search or seizure in one case automatically extends to any other circumstance in which he might find himself—such expansive logic is antithetical to the well-known and frankly fundamental principle that Fourth Amendment application is always fact-specific. See, e.g., Leveto v. Lapina, 258 F.3d 156, 170-72 (3d Cir. 2001) (Alito, J.) (examining at length whether the government's actions were actually reasonably necessary to further its generalized interest in safety and holding, under the circumstances, they were not); Heitschmidt v. City of Houston, 161 F.3d 834, 839 (5th Cir. 1998) (same).
Relevant to the present case, the Supreme Court has recognized that governmental interests in officer safety, facilitating the completion of a search for evidence and contraband, and preventing the flight of key suspects are generally present in every execution of a search warrant. See, e.g., Bailey v. United States, 133 S.Ct. 1031, 1038 (2013); Muehler v. Mena, 544 U.S. 93, 98 (2005); Summers, 452 U.S. at 702-03. It does not follow from that observation, however, that in every search those governmental interests always carry more weight than any countervailing individual privacy interests at stake. Instead, as with any Fourth Amendment analysis, it is crucial to examine the context of the search, which includes the kinds of risks associated with particular kinds of offenses. For instance, the Supreme Court precedents I discussed above involved investigation of drug-, gun-, and gang-related crimes. See Bailey, 133 S. Ct. at 1036 (search for a handgun seen during a drug investigation); Muehler, 544 U.S. at 95 (search for evidence of a gang-related shooting); Summers, 452 U.S. at 693 (search for drugs). In the same vein, the Second Circuit "has repeatedly acknowledged the dangerous nature of the drug trade and the genuine need of law enforcement agents to protect themselves from the deadly threat it may pose." United States v. Alexander, 907 F.2d 269, 273 (2d Cir. 1990) (collecting cases).
By contrast, although guns may be the "tools of the trade" of drug distribution, United States v. Becerra, 97 F.3d 669, 671 (2d Cir. 1996), they are not the tools of tax evasion. Tax-related felonies are generally recognized to be nonviolent offenses. See, e.g., Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (denying qualified immunity on summary judgment where IRS agent handcuffed a woman verbally objecting to execution of warrant). Accordingly, in the tax cases that discuss strong governmental interests in, for instance, officer safety, the courts justified their rulings at least in part on a determination that the officers in those circumstances reasonably believed there was a meaningful risk of harm. See, e.g., Unus v. Kane, 565 F.3d 103, 120 (4th Cir. 2009) (observing that the searched home was "believed to contain evidence of money laundering by entities suspected of assisting international terrorism"); Dawson v. City of Seattle, 435 F.3d 1054, 1067 (9th Cir. 2006) (discussing, inter alia, the specific context of searching a boardinghouse and that the property owner had resisted the search and had an associate with a violent criminal history, including a history of threatening government officials about inspections); cf. Garavaglia v. Budde, 43 F.3d 1472, 1994 WL 706769 (6th Cir. 1994) (unpublished) (granting summary judgment because the application of a specific Supreme Court case to the situation was unsettled in the Sixth Circuit).
The Supreme Court has frequently instructed that "clearly established law" in the Fourth Amendment context should not be defined "at a high level of generality." See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (collecting cases). That admonishment applies to the inappropriate expansion of qualified immunity through an unexamined assumption that all law enforcement investigations are equally dangerous. At the motion to dismiss stage, it is difficult to establish a specific and sufficiently weighty government rationale without making reference to materials outside the pleadings. For that reason, most qualified immunity cases are decided after some discovery. Granting a motion to dismiss—at which stage the plaintiff is required to meet only the notice pleading standard of Rule 8 and I am obligated to draw all reasonable inferences in his favor—on the sole basis that the government generally has a set of safety interests in most efforts to effectuate a search warrant, would vitiate the Fourth Amendment totality of the circumstances test and the availability of the Bivens remedy.
With those principles in mind, I now turn to a consideration of Carpenter's specific Fourth Amendment claims.
Carpenter alleges that the search, as planned and carried out, involved an unreasonable or excessive show of force. Contrary to Schrader's suggestion that an excessive show of force cannot constitute the basis for an excessive use of force claim, see Def.'s Br. at 17, the Second Circuit in Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014), observed that: "[d]epending on the circumstances, a search may be unreasonable under the Fourth Amendment even if officers do no more than threaten the occupants with firearms." Id. at 240. In support of that determination, the Terebesi Court relied on, inter alia, Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001), which stated:
Id. at 1192-93. Holland involved the more dramatic context of officers who had pointed guns at minors; however, the same reasoning applies here.
In the present case, Carpenter has at least arguably alleged a show of force that was in excess of any legitimate governmental interest. He alleges that seventy-two armed agents brandishing
Schrader has pointed to several cases in which equivalent displays of force were deemed to be reasonable, see Def.'s Br. at 20-21; however, as discussed above, each of those cases involved violent crimes or other specific indicia of risk not obviously present in this case. Schrader also incorrectly attempts to extend the Second Circuit's observation in Terebesi that "there is no clearly established right . . . to be free from the deployment of a tactical team in general," 764 F.3d at 233, to mean that there will always be qualified immunity for the decision to use such procedures. The Terebesi Court was assessing the plaintiff-appellee's claim that "the decision to deploy a tactical team [rather than ordinary officers] can, under certain circumstances, constitute an unconstitutional use of force, regardless of the details of the planned operation." Id. at 232. The Second Circuit emphasized, however, that its reversal of the district court's denial of qualified immunity
Id. at 233. In the present case, where the plaintiffs complain about the alleged use of SWAT-like tactics without justification, rather than simply complaining about use of an actual tactical team, there is not even an equivalent claim to dismiss.
Carpenter also argues that Schrader's show of force exceeds the statutory authority granted to the IRS. In his brief, Carpenter argues that IRS agents lack statutory authorization to carry firearms in this context altogether. See Pl.'s Opp'n Br. at 12-15. He points out that the statutory sections discussing IRS enforcement of laws pertaining to alcohol, tobacco, and firearms and IRS enforcement of other tax laws are largely parallel, except that the former includes an explicit authorization for agents to "carry firearms" and the latter does not. Compare 26 U.S.C. § 7608(a)(1) with 26 U.S.C. § 7608(b)(2). Although Carpenter's statutory construction is convincing, he has not identified any decision predating the April 2010 search adopting it—in fact, the First Circuit, considering the same theory in a suppression motion in United States v. Adams, 740 F.3d 40 (1st Cir.), cert. denied, 134 S.Ct. 2739 (2014;), observed that it was "a novel one." Id. at 43. Unfortunately for Carpenter, novel theories do little work in the qualified immunity context, where a violation of "clearly established" law is required.
In the same vein, I note that the Internal Revenue Manual ("IRM") undercuts Carpenter's theory, observing that although there is "no specific statutory authority for special agents to carry firearms," such authority is implied by the statutory authority to make arrests. See IRM at § 9.1.2.4.1 (effective Nov. 10, 2004) (doc. 86-1); see also id. at § 9.1.2.5.1 (effective Jan. 23, 2004) (same).
Finally, Carpenter argues that the show of force violated IRS policy. Although agency policy would not provide the basis for a Fourth Amendment or statutory violation, a knowing violation of official policy would certainly have bearing on the third prong of the qualified immunity test. See Soares v. Connecticut, 8 F.3d 917, 922 (2d Cir. 1993) ("To be sure the written policy might bear upon whether the officers' actions were objectively reasonable, but it has no bearing on whether the officers violated clearly established constitutional or statutory rights unless it somehow created a protected interest. . . ."). Carpenter has at least arguably alleged such violations. For instance, the IRM, at section 9.2.3.6, provides:
Carpenter has alleged that those policies were not followed in several ways—he alleges that the agents were carrying "automatic weapons," rather than handguns; that those weapons were in plain view; and that they were "brandished" during the search, all despite the absence of any plausible threat. See SAC at ¶¶ 8, 22. A reasonable inference arises that Schrader, as the Special Agent in charge of planning the search, was aware of those policies.
Discovery may quickly reveal that Carpenter's version of events is incorrect. I am particularly mindful of Mountain Pure, LLC v. Roberts, 814 F.3d 928 (8th Cir. 2016), a potentially similar case in which the Eighth Circuit upheld the district court's grant of qualified immunity. The use of force at issue in Mountain Pure was a search for business documents and seizure of employees that the IRS and the Small Business Administration carried out using thirty-five law enforcement agents carrying weapons and wearing ballistic vests.
Carpenter alleges that his office was "ransacked." SAC at ¶ 28. I infer from that allegation that there was an inappropriate destruction of his personal property and effects, conducted either by Schrader or, with his deliberate indifference, by agents under his supervision.
"Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression." United States v. Ramirez, 523 U.S. 65, 71 (1998). In Cody v. Mello, 59 F.3d 13 (2d Cir. 1995), the Second Circuit stated that due process liability could be imposed for property damage during a lawful search if the law enforcement agent "acted unreasonably or maliciously," id. at 16, a principle that district courts have routinely extended to the Fourth Amendment context, see, e.g., Koller v. Hilderbrand, 933 F.Supp.2d 272, 278 (D. Conn. 2013); Foreman v. Beckwith, 260 F.Supp.2d 500, 505 (D. Conn. 2003). Drawing all reasonable inferences in favor of Carpenter, he has plausibly alleged that Schrader or the agents under his supervision needlessly and maliciously destroyed his property, perhaps to coerce Carpenter into an interrogation or as retaliation for his perceived "anti-government" stance.
Again, I note that discovery may reveal that none of Carpenter's property was, in fact, destroyed; or that the destruction was reasonably necessary or inevitable in the course of conducting the search. For instance, in Soichet v. Toracinta, 111 F.3d 124, 1997 WL 183776 (2d Cir. 1997) (unpublished), the Second Circuit affirmed the district court's grant of summary judgment on the claim that law enforcement agents had violated her Fourth Amendment rights when they "`ransacked' [her] apartment and destroyed antique furniture" in the course of a search for drugs. Id. at 124. The Second Circuit observed that the plaintiff's "conclusory allegations," which failed to specify the nature of the agents' misconduct or the extent of the damage they caused, were insufficient to demonstrate that the destruction was unreasonable in the course of the search. Id. But that determination was made at the summary judgment stage. Id.; see also Koller, 933 F. Supp. 2d at 279 (observing that district courts have been "reluctant to resolve the issue [whether officers' destruction of property was unreasonable or malicious] at summary judgment") (collecting cases).
Carpenter alleges that the agents "detained the plaintiff [presumably Carpenter] and others for unreasonably long periods of time." SAC at ¶ 19. He further suggests that the detentions were intended to coerce witnesses into making statements without the assistance of counsel or other protections. See id. at ¶¶ 25, 28. As a preliminary matter, I note that Carpenter cannot assert claims on behalf of other parties, such as the GMC employees. Accordingly, I focus only on whether Carpenter's personal detention constituted an unreasonable seizure. A seizure within the meaning of the Fourth Amendment occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16 (1968). A seizure becomes unlawful when it is "more intrusive than necessary." Florida v. Royer, 460 U.S. 491, 504 (1983). The scope of a detention "must be carefully tailored to its underlying justification." Id. at 500; see also Los Angeles Cty., California v. Rettele, 550 U.S. 609, 614 (2007) ("Unreasonable actions include the use of excessive force or restraints that . . . are imposed for a prolonged and unnecessary period of time.").
"[T]he general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause." Michigan v. Summers, 452 U.S. 692, 700 (1981).
The Supreme Court has subsequently indicated that the Summers exception to the warrant requirement for seizures is a broad, categorical rule permitting detention during a valid search warrant even when law enforcement does not "have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers." Bailey, 133 S. Ct. at 1037-38. But balancing the intrusion imposed by the detention against the governmental interests furthered by it and the individualized suspicion of Carpenter, who was apparently believed to be a perpetrator of the alleged offense,
With respect to the intrusion imposed by the detention, the Summers Court held that a detention in the home added only minimally to the intrusion already imposed by the search because: (1) most people would prefer to remain to observe the search; (2) the police would not be likely to exploit or unduly prolong the detention to gain information; and (3) being detained inside the home does not add significantly to the public stigma of being searched in the first place. Summers, 452 U.S. at 702-03.
The first of the Summers rationales is presumably applicable to some extent—Carpenter may plausibly have wished to remain on the premises of his business for the duration of the search. In Summers and its progeny, however, being detained for the duration of the search apparently entailed a detention of less than three hours. See, e.g., Muehler, 544 U.S. at 100 (two to three hours); Daniel v. Taylor, 808 F.2d 1401, 1405 (11th Cir. 1986) (two hours and 45 minutes); Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006) (two hours). The dissenting Justices in Summers expressed concern that the majority's new rule could permit a detention lasting more than five hours. See 452 U.S. at 712 n.3 (Stewart, J. dissenting); see also Leveto, 258 F.3d at 169 (holding that an eight-hour detention, the duration of two inefficiently conducted searches, "undoubtedly qualifies as prolonged under any reasonable understanding of that term"); Heitschmidt, 161 F.3d at 838 (finding a violation where, inter alia, the plaintiff was "detained in pain without a restroom break for more than four hours"). But see Unus, 565 F.3d at 119-20 (finding no violation where the plaintiffs were subjected to a four-hour detention with bathroom breaks during execution of warrant to search for documentary-evidence of terrorist-financing); Mountain Pure, LLC, 814 F.3d at 934 (finding no "clearly established law" in the Eighth Circuit prohibiting detentions lasting up to eight hours during a document search). In the present case, the complaint can be read to suggest that Carpenter was detained for the full eighteen-hour duration of the search, a time period that eclipses any of the above precedents, and would seem to be unreasonable by any standard.
Moreover, Carpenter has alleged that the search, and his concurrent detention, lasted longer than what was permitted by the warrant. The warrant permitted a search from 6:00 a.m. to 10:00 p.m., e.g., a sixteen-hour day. See Warrant (STOLI Case, doc. 81-1). The Second Amended Complaint alleges that the search lasted for eighteen hours, two hours longer than permitted. SAC at ¶ 9. It has long been clearly established that a search exceeding the scope of a validly-issued warrant and subject to no other exceptions from the warrant requirement is unconstitutional. See Horton v. California, 496 U.S. 128, 140 (1990). Because the Summers rule only applies to detentions incident to the execution of a valid warrant, as soon as Schrader's search exceeded the scope of the warrant, he needed to provide some other justification for Carpenter's on-going detention. None is indicated by the pleadings.
Carpenter's allegations directly challenge the second Summers rationale—he seems to suggest that the prolonged detention was imposed for the purpose of coercing a statement from him outside the presence of counsel.
The third Summers rationale also arguably supports a contention that Carpenter's detention—in his office and in front of all of his employees—represented a more significant intrusion onto his privacy than the in-home detention at issue in Summers. Several Circuit courts have recognized that the detention of an individual at his or her place of work may be significantly more stigmatizing than the in-home detention at issue in Summers. For instance, the Third Circuit stated in Pikel v. Garrett, 55 F. App'x 29 (3d Cir. 2002):
Id. at 31 (internal citation omitted); see also Daniel v. Taylor, 808 F.2d 1401, 1403-04 (11th Cir. 1986) (observing that a plaintiff's detention on business premises that she owned and in front of her employees was at least arguably more public and therefore intrusive than detention in the home). In sum, Carpenter has at least arguably alleged that the detention imposed a significant intrusion upon his privacy rights.
The Summers Court identified "three legitimate law enforcement interests that provide substantial justification for detaining an occupant:
Muehler, 544 U.S. at 98 (quoting Summers, 452 U.S. at 702-03). Presumably each of those rationales applies to some extent in the present case. But, as then-Judge Alito observed, writing for the Third Circuit in Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), the tax context triggers those governmental interests to a very different degree than the "inherently dangerous situations," Muehler, 544 U.S. at 100, the Supreme Court had in mind when it issued its Summers rule.
First, Judge Alito observed that the governmental interest in prevention of flight is lessened when the search is for complicated documentary evidence in the tax context because that search
Leveto, 258 F.3d at 170.
Second, Judge Alito observed that the need for detention to reduce the risk of harm to the agents was also reduced.
Id. at 171. Judge Alito's reasoning is thus consistent with the holding in Unus v. Kane, 565 F.3d 103 (4th Cir. 2009), a case cited by Schrader in support of the proposition that lengthy detentions are justified when effecting a search warrant for financial documents, because the Fourth Circuit's holding relied in part on the fact that the plaintiffs' residence was "believed to contain evidence of money laundering by entities suspected of assisting international terrorism." Id. at 120.
Third, Judge Alito observed there was no indication that the agents had relied on the detained plaintiff to facilitate the search. Leveto, 258 F.3d at 171. Judge Alito further asserted that, given that fifteen IRS agents executing the search in that case—which he characterized as a "large group"—the plaintiff's extended detention was not justified by a need to prevent the destruction of evidence. Id. ("[H]ad [the plaintiff] attempted to disrupt the evidence at either [of the search locations], the agents would have been present to intervene.").
Judge Alito's analysis of the government's rationales transfers easily to Carpenter's case, where he has alleged a lengthy search for a large number of documents that indeed still have not led to an arrest, during which Carpenter posed no meaningful risk of violence or harm, and in which Carpenter was not required to provide any meaningful assistance.
Carpenter's allegation that his detention was used as a means of extracting statements from him outside the presence of counsel similarly does not appear to be balanced by any pressing governmental need at this stage of the proceedings. The Ninth Circuit held in Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003), that the law enforcement interests identified in Summers may justify ordering someone to remain on the premises and in a specified location, but they do not justify "coercing [that person] into submitting to interrogations." Id. at 1122. Instead, the Ganwich court observed that:
Id. I would add that, in the absence of some kind of emergency, it is unclear why the government would have any kind of legitimate interest in using detention to obtain an un-Mirandized statement from their primary suspect, which statement cannot actually be used in any proceeding against him.
Despite Schrader's effort to rely on drug and gun cases, see Def.'s Br. at 20-21, the government's interests in the violent crime context do not automatically translate with the same force to the context of tax offenses. As discussed above, Schrader is at a disadvantage in assessing the Summers factors at the motion to dismiss stage. Without presenting evidence outside the pleadings, it is difficult for him to assert with particularity the specific circumstances and concerns that may have made his conduct entirely reasonable. But until such evidence is put before me through the adversarial system, I cannot simply rely on its possible existence to dismiss Carpenter's claims.
At several points in the above discussion, I have observed the need for discovery. I am mindful, however, of the Supreme Court's instruction that the issue of qualified immunity should be decided at the earliest available stage of the case to avoid needlessly subjecting public officials to "broad-ranging discovery." Anderson, 483 U.S. at 646 n.6 (discussing Harlow, 457 U.S. at 817-18). I want to make clear that in the present case—as in the vast majority of the cases I discussed above—a motion to dismiss would not fairly present such a stage.
Contrary to Schrader's suggestion at the hearing on this motion, a complaint alleging a Bivens violation is only required to meet the Rule 8(a)(2) standard for notice pleading, meaning that it must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). And as I noted in my Order on October 5, 2016, doc. 82, the complaint adequately alleges that Schrader had sufficient personal involvement to be held liable for the unconstitutional acts discussed above—Carpenter alleges that Schrader planned the search and that he was "deliberately indifferent" to whether the agents he was supervising during the search were violating Carpenter's constitutional rights. See SAC at ¶¶ 21, 24, 28; see also Terebesi, 764 F.3d at 234 (collecting cases). This case is thus distinguishable from Iqbal, where the complaint failed to adequately allege the personal involvement of the defendants, and accordingly dismissal on the pleadings was appropriate. 556 U.S. at 682-83. In the same vein, as discussed at length above, drawing all reasonable inferences in favor of Carpenter, his complaint has adequately and plausibly alleged various Fourth Amendment violations.
In sum, as I stated in my October 5th Order, whether and to what extent Schrader was personally involved in the search, the force he used and witnessed being used in its execution, and the circumstances of Carpenter's extended seizure are questions on which adversarial discovery is required. See also Terebesi, 764 F.3d at 236 (declining to resolve the qualified immunity question at the summary judgment stage, holding that whether the plan in that case was "unreasonable" as demonstrated by "clearly established law" turned on the resolution of disputed and material facts). The parties' early discovery efforts, however, should be "tailored specifically to the question of [Schrader's] qualified immunity." Anderson, 483 U.S. at 668 n.6.
In conclusion, I
So ordered.
Mountain Pure LLC, 814 F.3d at 931.
