STEFAN R. UNDERHILL, District Judge.
This case arises out of a search conducted at 100 Grist Mill Road, in Simsbury, Connecticut (the "Simsbury site"), on April 20, 2010, by the IRS's Criminal Investigation Division (the "IRS-CI"). On April 19, 2013, the plaintiffs, Daniel Carpenter and Grist Mill Capital, LLC, filed the present action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against multiple named defendants, including Shaun Schrader, a Special Agent with IRS-CI ("Schrader"), and "Unknown Agents 1-72" of IRS-CI.
On December 14, 2016, I denied Schrader's motion to dismiss the Fourth Amendment claims related to the unreasonableness of the search brought against him in Carpenter's penultimate complaint. (Doc. # 92.)
The record now before me on summary judgment reveals a different account of the April 20, 2010 search, and a different role therein for Schrader, than I was obliged to accept in my last ruling: On the day of the search, the agents, who were encouraged to wear business casual attire, and who had not received any permission to bring automatic weapons, were led into the building by Enstrom. Employees the searchers encountered were gathered into a conference room, and soon after the employees identified themselves, they were permitted to leave. Carpenter's "ransacked" office was not damaged in any way, and was merely left messier than its usual already messy condition. Schrader was not the supervisor of the agents executing the search and was not even on site for much of the search.
I need not address in this ruling the constitutionality of every single isolated use of force alleged by Carpenter. Although most are unsupported by significantly probative evidence, even if Carpenter has produced evidence of any actionable uses of force, no reasonable juror could conclude that Schrader was personally involved in such uses of force. Carpenter has failed to provide evidence capable of showing Schrader's personal involvement in any Fourth Amendment violations related to the execution of the April 20, 2010 search. Accordingly, for the reasons set forth more fully below, I
Summary judgment is appropriate when the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).
When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
"Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is "merely colorable", or is not "significantly probative", summary judgment may be granted. Anderson, 477 U.S. at 249-50.
Id. at 247-48. To present a "genuine" issue of material fact, there must be contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party". Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.
Schrader served as a Special Agent with the IRS-CI from April 2004 to August 2010 (Local Rule 56(a)(1) Statement of Undisputed Material Facts at ¶ 1, doc. # 129-2 [hereinafter "Facts at ¶ __"]), and was the Case Agent assigned to the investigation of NOVA, Benistar, and other related entities
Following a decision within the IRS-CI to seek to obtain evidence in the NOVA/Benistar investigation via search warrant, Schrader drafted an affidavit to support a search warrant for the Benistar office located at the Simsbury site. (Facts at ¶¶ 8-9.) Schrader's search warrant affidavit was submitted to U.S. Magistrate Judge Thomas P. Smith on April 16, 2010 and Judge Smith approved a search warrant for execution during the daytime, from 6:00 a.m. to 10 p.m., on or before April 25, 2010 (the "Search Warrant"). (Facts at ¶ 11.)
In preparation for the search of the Simsbury site, Schrader drafted a Search Warrant Checklist, an Enforcement Action Review Form, a Risk Assessment Form, and a Search Warrant Plan. (Facts at ¶ 17.) Those documents were approved by Enstrom, Assistant Special Agent in Charge Joan Totani, Special Agent in Charge Julio La Rosa, and IRS Criminal Tax Counsel. (Facts at ¶ 17.) Although Schrader shared responsibility for the selection of the number of agents participating in the search and the identity of such agents, he was not responsible for the supervision, instruction, or training of the officers who assisted with the execution of the search warrant.
The Search Warrant Plan included a list of 57 IRS-CI agents who would be involved with the execution of the Search Warrant. (Facts at ¶ 19.) The agents involved were assigned responsibilities including (i) interviewing employees, (ii) identifying Benistar employees, (iii) "provid[ing] outside cover", (iv) conducting the search, (v) logging evidence, and (vi) attending to attorney-client privilege issues related to the seized items.
The Search Warrant Plan called for the entry team members to wear ballistic vests, pursuant to IRS-CI policies. (Facts at ¶ 25 (citing IRM § 9.4.9.3.5 ("All GS-1811 employees and their managers taking an active, participating role should wear a ballistic vest. The final judgment on whether a ballistic vest must be worn or whether an exception will be granted, rests with the SSA.")).) Schrader was not the SSA, and was not responsible for deciding whether vests would be worn by the agents.
Schrader had no role in creating the IRS policies relating to firearms. (Facts at ¶ 27.) IRS-CI agents are permitted by IRS policy to carry firearms. (Facts at ¶ 27 (citing IRM § 9.1.2.4.1).) All agents are assigned a semiautomatic handgun as their service weapon (Facts at ¶ 27), and at the time of the search it was IRS-CI policy that agents involved in search warrant execution must carry a holstered semiautomatic firearm and handcuffs (Facts at ¶ 27 (citing Schrader Decl. at ¶ 12)). Before "long guns" (e.g., rifles and shotguns) may be brought along in search warrant executions, a specific written request must be submitted and approved, also in writing. (Schrader Dep. at 39:25-40:13.) If long guns were to be used, that fact would be noted in the Search Warrant Plan. (Enstrom Dep. at 73:2-25.) Schrader did not request authority for long guns to be used in the search of the Simsbury site, no approvals for long guns were given in this case, and the Search Warrant Plan does not indicate that long guns would be used. (Schrader Dep. at 39:25-40:13, 41:7-8; Enstrom Dep. at 66:2-13, 73:2-25.)
The Search Warrant Plan called for the agents to enter the Simsbury site through the unlocked main entrance at approximately 9:00 a.m. on April 20, 2010. (Facts at ¶ 29.) The Search Warrant Plan did not include the use of a SWAT team, but did note that the "Hartford POD [would] bring entry/extraction tools" to the site." (Facts at ¶ 29; Fact Response at ¶ 29.) The Search Warrant Plan called for the agents to "make a general announcement to the building while walking through regarding the warrant". (Search Warrant Plan, at IRS00014.) Each officer who encountered an employee would then identify themselves, tell the employee that they were executing a search warrant, and ask the employee if they had any keys to unlock "their area or file cabinets and to leave the keys at their desk". (Search Warrant Plan, at IRS00014.) The employee would then be instructed to "gather their purse/wallet and personal keys and proceed to a general area in the front for identification". (Search Warrant Plan, at IRS00014.) The Search Warrant Plan did not contemplate lengthy questioning or detention of most employees during the search, simply stating that "[p]reviously assigned agents will identify each employee prior to allowing them to leave the building." (Search Warrant Plan, at IRS00014.) By contrast, the plan sought interviews with three specific employees: The plan stated that "Stefan Cherneski, Kevin Slattery and Richard Belding will be interviewed, please ensure the assigned agents are in contact with them as soon as possible."
The day before the execution of the Search Warrant, Schrader and Enstrom conducted a briefing for the agents who were assigned to assist with the search.
On the day of the search, April 20, 2010, at approximately 9:05 a.m., Enstrom, acting as the team leader of the Search Warrant execution, led the agents into the Simsbury site through the unlocked front door. (Facts at ¶¶ 46-47.) Schrader was not on site for the commencement of the search. (Facts at ¶ 48.) Upon entry, Enstrom first encountered an employee she believes was a receptionist. (Facts at ¶ 47.) Enstrom identified herself to the employee, explained what the agents were doing there, and asked to see the individual in charge of the premises. (Facts at ¶ 47.) Agents then gathered the employees into a large conference room. (Facts at ¶ 81.)
Carpenter first encountered the search team when two male agents entered his suite of offices at the rear of the building around 9:00 a.m., through an unlocked door.
After gathering the employees into a large conference room, agents asked the employees their names, and whether they had identification on them. (Facts at ¶¶ 81-82.) Employees who did not have identification on them were escorted back to their offices to obtain their identification. (Facts at ¶ 82; Meckel Dep. at 36:10-15.) Employees were allowed to take any personal effects, but were told not to take any files or other work records. (Facts at ¶ 82; Meckel Dep. at 36:15-19.) After identifying themselves, the employees were allowed to leave and most did leave.
Enstrom provided the Search Warrant to Carpenter, but did not provide the Search Warrant affidavit, which was under seal at the time.
Daniel and Molly Carpenter left the building between approximately 11:10 a.m. and noon (Facts at ¶ 87), before Schrader had arrived at the site (Facts at ¶ 50). Carpenter did not re-enter the building on the day of the search. (Carpenter Dep. at 118:5-11.)
Enstrom, acting as the Team Leader of the Search Warrant execution, was "in charge on scene". (Facts at ¶ 46.) Carpenter recognized that Enstrom "was the `authority figure' who was in control of the site during the search" and has stated that she "definitely appeared to be the boss". (Facts at ¶ 46; Carpenter Dep. at 127:21-22.) On the other hand, at the time of the initial entry at the Simsbury site, Schrader was off-site at the M&M Coffee Shop in Hartford, meeting with another target of the NOVA/Benistar investigation. (Facts at ¶ 48.) Schrader arrived at the Simsbury site a few hours after initial entry, and therefore did not witness the agents entering the site, and only arrived after Carpenter had left the building. (Facts at ¶¶ 49-50.) Schrader did not interact with Carpenter at all, and Carpenter "still to this day couldn't pick Shaun Schrader out of a lineup", and does not know what Schrader did while inside of the Simsbury site. (Facts at ¶ 50; Carpenter Dep. at 176:13-19, 311:7-15.) Carpenter did not observe anyone seeking supervision from Schrader.
Schrader and Enstrom were both carrying holstered handguns on the day of the search. (Facts at ¶¶ 53-54.) Neither Schrader nor Enstrom removed their handguns from their holsters. (Facts at ¶¶ 53-54.) Neither Schrader nor Enstrom were aware of any agents carrying anything other than a handgun on the day of the search, and neither Schrader nor Enstrom saw anyone unholster their firearms nor were they made aware of anyone unholstering their firearms on the day of the search.
Schrader "did not use any force when . . . present at [the Simsbury site]". (Facts at ¶ 68 (citing Schrader Decl. at ¶ 23).) Schrader did not observe "any other officer using any force".
Schrader did not instruct any officer to interrogate any employee. (Facts at ¶ 72.) The Search Warrant Plan did not call for any custodial interrogations. (Search Warrant Plan, at IRS00014-22.) Schrader did not observe any custodial interrogations during the execution of the search warrant. (Facts at ¶ 73.) Schrader did not interview anyone, did not question Carpenter, and did not place him in custody, threaten him with handcuffs, or threaten him with arrest.
Some agents participating in the search wore visible black Kevlar vests, while others concealed Kevlar vests underneath blue windbreakers. (Facts at ¶ 51.) The agents did not wear masks or any visible protective gear below the waist. (Facts at ¶ 51.) Schrader was not wearing a Kevlar vest on the day of the search. (Facts at ¶ 22.) The Search Warrant Plan encouraged the agents to wear business casual attire (Search Warrant Plan, at IRS00019), but Schrader had no independent role in determining the clothing worn by the agents, which would have been determined by the Special Agent in Charge (Schrader Decl. at ¶11; Enstrom Dep. at 74:11-75:8). Carpenter does not fault how the agents were dressed during the search. (Facts at ¶ 52.)
The search did not cause any damage to Carpenter's furniture, walls, doors, windows, window blinds, paint, carpet, or fixtures. (Facts at ¶ 89.) No items were torn, damaged, or broken. (Facts at ¶ 89.) After the search, Carpenter's office was left with papers taken out of filing cabinets and stacked up on chairs, tables, and the floor. (Facts at ¶ 90.) Files were strewn all over. (Carpenter Dep. at 252:24.) However, the ordinary pre-search state of Carpenter's office was "disheveled", with "[p]apers and files everywhere". (Meckel Dep. at 83:19-84:24.) Carpenter's office was normally "a mess" of piles, and co-workers had a "rule, never to give Dan an original copy of anything", because they "were afraid they'd get lost in the piles". (M. Carpenter Dep. at 75:20-78:7.) Pictures of Carpenter's office after the search show an office that is "more disshelved [sic] than usual", because Carpenter "wouldn't leave piles on top of each other or things falling over". (Meckel Dep. at 86:5-12.) The office was "more chaotic than usual". (Meckel Dep. at 88:17.) It looked "a little bit messier than normal". (Meckel Dep. at 89:16-17.) Carpenter's complaint that his office was "ransacked" was due to the fact that files were left "out of place". (Carpenter Dep. at 249:7-253:2.)
During Schrader's time on scene he only observed a building that looked like it was "in pretty good shape", with agents taking documents out of file cabinets and placing them into boxes and imaging computers. (Schrader Decl. at ¶ 25.) Schrader did not observe any property damage or himself destroy any property. (Schrader Decl. at ¶ 25.)
Shortly after 10:00 p.m., the agents turned over control of the building to Carpenter's attorney, who was present on site.
Pursuant to the search, agents seized 322 boxes of documents and imaged 11 computers or servers, one thumb drive and one external hard drive. (Facts at ¶ 66.) Carpenter contends that 40 of the boxes belonged to Grist Mill Capital. The remaining boxes belong to either Benistar or Benistar Administrative Services, Inc. (Facts at ¶ 66; Fact Response at ¶ 66.)
Since filing this case, Carpenter has brought and amended a variety of claims against a number of defendants, all arising out of the April 20, 2010 search. The defendants have included Schrader, numerous John and Jane Doe agents of the IRS-CI, Victor Song, Chief of the IRS Criminal Investigation Unit, and Douglas Shulman and John Koskinen, Commissioners of the Internal Revenue Service.
While proceedings in this action were ongoing, Carpenter was indicted in the District of Connecticut for his participation in a fraudulent scheme involving stranger-oriented life insurance. 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 review of the materials held by the IRS as a result of the April 20, 2010 search of the Simsbury site. On September 15, 2014, Carpenter filed in the STOLI case a motion to suppress the evidence obtained from that search on the grounds that: (1) Schrader's affidavit in support of the Search Warrant was materially defective because it included numerous misstatements and deliberate omissions; (2) the affidavit and resulting warrant were overbroad and insufficiently particularized; and (3) the defendants failed to provide Carpenter with the affidavit during the search. STOLI Case, (doc. # 83). U.S. District Judge Robert N. Chatigny denied Carpenter's motion to suppress the same evidence at issue here, and on June 6, 2016, Judge Chatigny found Carpenter guilty on all 57 counts of that indictment. See United States v. Carpenter, No. 3:13-cr-226 (RNC) (D. Conn.).
Based on Judge Chatigny's rulings in the STOLI case, I held, in my December 14, 2016 ruling, that Carpenter's Fourth Amendment claims based on the alleged invalidity of the Search Warrant were barred under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). In that ruling, I either dismissed or noted the abandonment of all of Carpenter's claims against Schrader, with the exception of Carpenter's Fourth Amendment claims relating to the unreasonableness of the April 20, 2010 search. I observed that adversarial discovery was necessary to test the extent to which Schrader was personally involved in any constitutionally suspect aspects of the search, and whether Schrader could be shielded by qualified immunity. Following that ruling, and the commencement of discovery, Carpenter (and/or Grist Mill Capital, LLC) filed a pair of amended complaints culminating in the Third Amended Complaint, which was filed on June 2, 2017. The Third Amended Complaint abandoned any claims against Victor Song, and the unknown John and Jane Doe agents, but added Supervisory Special Agent Enstrom as a defendant.
On June 22, 2017, Enstrom moved to dismiss the allegations against her in the Third Amended Complaint, and on September 1, 2017, Schrader simultaneously brought two motions seeking, respectively, dismissal of, or summary judgment on, the claims brought against him in the Third Amended Complaint. On November 14, 2017 I dismissed any claims against Enstrom as barred by the statute of limitations, but took under advisement Schrader's two motions. I now write to address Schrader's pending motion for summary judgment and motion to dismiss.
In his motion for summary judgment, Schrader argues both that he did not commit any Fourth Amendment violations, and that he must, in any event, be shielded from liability by qualified immunity. "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)).
The Supreme Court has articulated a three-part test for considering a claim of qualified immunity. First, the court must determine whether a constitutional violation could exist on the facts as presented to the court. Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if the facts support a claimed violation of a constitutional right, the court must determine if the right alleged is "clearly established".
In opposition to Schrader's motion for summary judgment, Carpenter argues that Schrader can be held liable for Fourth Amendment violations related to (i) the use of unreasonable force in executing the search, (ii) the overbroad seizure of documents during the search, and (iii) a failure to provide to Carpenter with a "description of the alleged violations or the items to be seized". (Pl.'s Opp. Br. at 12-13.)
Unfortunately for Carpenter, Schrader's liability for any alleged Fourth Amendment violations must be based on his personal involvement in such violations, and not on a theory of respondeat superior. Iqbal, 556 U.S. at 676; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Schrader's liability thus depends on Carpenter's ability to adduce evidence capable of showing at least one of the five following categories of personal involvement: (1) direct participation in an alleged constitutional violation; (2) failure to remedy a violation after being informed of it; (3) creation or continuance of a policy or custom under which unconstitutional practices occurred; (4) gross negligence in supervising subordinates who committed the wrongful acts; or (5) deliberate indifference to Carpenter's rights by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873. Carpenter has failed to adduce evidence capable of proving any of the foregoing types of personal involvement by Schrader.
Carpenter has failed to provide evidence from which it could be concluded that Schrader was grossly negligent in supervising subordinates who committed any wrongful acts. As a preliminary matter, Schrader has provided evidence that he was not a supervisor of any of the agents who executed the search (Schrader Decl. at ¶ 14; Enstrom Dep. at 188:15-189:4, 196:9-12, 206:13-23), and Carpenter fails to adduce evidence from which the opposite could be concluded.
I can discern only two types of arguments attempted by Carpenter to show Schrader's purported gross negligence: First, Carpenter appears to suggest that Schrader's liability can derive from his absence during parts of the search (Opp. Br. at 8, 19), and second, Carpenter suggests Schrader was insufficiently specific in his description, during pre-search briefing, of those 419 plans that were pertinent to the investigation (Opp. Br. at 3, 19).
Carpenter has also failed to introduce evidence capable of showing that Schrader exhibited deliberate indifference to Carpenter's rights by failing to act on information indicating that unconstitutional acts were occurring. Carpenter has failed to provide any evidence that Schrader was aware unconstitutional acts were occurring. I have previously acknowledged that failure to train can constitute deliberate indifference, Diaz-Bernal v. Myers, 758 F.Supp.2d 106, 130 (D. Conn. 2010), but that decision did not reject the need to establish knowledge of unconstitutional practices, id. at 130. Moreover, the Supreme Court decision on which I based my holding in Diaz-Bernal made clear—as I acknowledged in my own ruling—that a failure to train can only amount to deliberate indifference in situations where "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights" that supervisors can be said to have been deliberately indifferent to the need for further training. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989). Far from being such a case, Carpenter's argument here is essentially that Schrader was not specific enough in his explanation of the Items to Be Seized list.
Finally, Carpenter has failed to provide any evidence that could show Schrader's direct participation in any Fourth Amendment violations. Direct participation can be shown via evidence that Schrader personally committed the violative acts, or evidence that Schrader formulated a plan for the search that provided for and resulted in the violations. See Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014). Carpenter claims that Schrader directly participated in three types of Fourth Amendment violations during the search: (1) the use of unreasonable force, (2) the overseizure of documents, and (3) the failure by Enstrom to provide him with appropriate documents explaining and justifying the search.
Schrader cannot be said to have directly participated in Enstrom's failure to provide him with certain portions of the warrant documents. Carpenter has provided no evidence capable of showing that Schrader planned for Enstrom's decision not to provide certain documents to Carpenter, and Schrader was neither on site at the same time as Carpenter, nor in a position to remedy behavior by his supervisor of which he was not even aware.
Carpenter has likewise provided no evidence of Schrader's direct participation in any overseizures of documents. In addition to Carpenter's lack of specificity in describing any actual wrongfully seized documents, Carpenter has failed to adduce any evidence that Schrader personally seized any such documents.
Lastly, Carpenter has failed to provide evidence that Schrader personally committed or planned for any unreasonable uses of force during the execution of the search. Carpenter suggests numerous uses of unreasonable force: the number of agents involved; the use of rifles and their "brandishing" by the agents; physical force and threats applied to Carpenter during the search; the detention and/or interrogation of Carpenter during the search; and the "ransacking" of Carpenter's property.
Carpenter's only remaining allegation of unreasonable force is his claim that the number of agents used to execute the search was unreasonable. That claim merits at least some discussion because it does not run aground on the same shoals as his other allegations of force: Schrader's planning did contemplate the use of fifty-seven agents, which Carpenter claims constituted a Fourth Amendment violation. In analyzing whether the use of fifty-seven agents was unreasonable I must consider the "totality of the circumstances—the whole picture", Palacios v. Burge, 589 F.3d 556, 563 (2d Cir. 2009) (internal quotation marks omitted) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)), but that consideration must be limited to "the facts known to the officers", id.; cf. United States v. Chirino, 483 F.3d 141, 148 (2d Cir. 2007), or at least those facts the officers reasonably should have known.
Whereas I would have grave concerns regarding the reasonableness of a search plan involving fifty-seven rifle-wielding agents in tactical gear descending like a SWAT team on a place of business that presented a low security risk, in order to execute a search warrant for documents relating to tax violations—in other words, the circumstances described in the plaintiffs' complaint—that is not the case before me at summary judgment. Even a combination of only some of the foregoing elements might suggest that the planned for search was an unreasonable attempt to intimidate or punish investigation targets, but, again, the evidence before me at this stage does not present comparable circumstances.
As a preliminary matter, the evidence does not show agents in tactical gear forcing their way into the Simsbury site and generally roughing up the occupants. The plan anticipated agents wearing business casual dress and the bulletproof vests required by IRS policy. On the day of the search many agents wore windbreakers over their vests. Similarly, the plan called for agents to enter through the unlocked front door, during business hours, with the agents generally announcing their presence while they walked through the building. The plan did not call for a secondary rear entry to be made, and certainly did not call for the rear entry to be made by agents carrying rifles.
In fact, the plan did not call for any agents to be carrying rifles, and as previously discussed, Schrader cannot be said to have reasonably been on notice, during his planning, that any rifles would be brought to the search. The plan did call for agents to be armed with the handguns required by IRS policy, but did not anticipate that those firearms would be brandished or unholstered.
Accordingly, at the time that Schrader drafted the Search Warrant Plan calling for fifty-seven agents, the totality of the circumstances known to him were as follows: A plan was needed for a team of agents in business casual attire, bulletproof vests, and holstered sidearms to execute a search warrant through the unlocked front door of a building that was open for business. The building, which sat on an 11.2-acre site, covered 42,000 square-feet, with room for more than fifty offices and thirty to forty cubicles as well as conference rooms and other facilities. Thirty to forty workers were present at the site on a typical day, although Schrader and Enstrom apparently estimated that up to seventy workers might be present in their planning, and the office space available in the building does not make that estimate appear unreasonable.
In assessing the number of agents to recommend for the search, Schrader considered legitimate purposes and logistical requirements, such as the variety of responsibilities various officers would be assigned, the document-intensive nature of the search, and the need to maintain control on scene and ensure the safety of all present. The task assignments described in the Search Warrant Plan show that not all fifty-seven agents would participate in the entry or search, or would even be on site, and also show that many of the agents who would participate in the search were also assigned to other tasks, including, for example, interviewing Cherneski, Belding, or Slattery, providing outside cover of the front and rear of the building and the driveway, and video-recording and sketching of the site. At most, thirty-nine officers were designated for search participation (and, of these thirty-nine, only twenty-one officers were assigned solely the task of search participation), and even with that number of officers assisting in the search, the search was not completed until approximately 10 o'clock that evening.
Even if I were to rule that a search by a large number of agents could, without more, be unreasonable, I would be unable to say that the unreasonableness of the number of agents called for in Schrader's plan was clearly established. There is no Second Circuit precedent addressing the reasonableness of the number of agents selected for a search warrant execution. The Eighth Circuit in Mountain Pure found that a search of a large bottling facility by thirty-five agents armed with handguns and ballistic vests was reasonable in light of the size of the facility. 814 F.3d 928, 931, 933 (8th Cir. 2016).
Because Carpenter has failed to provide evidence from which a reasonable juror might conclude that Schrader either personally committed or planned for any Fourth Amendment violations, I hold that Carpenter has not sufficiently demonstrated Schrader's direct participation in any such violations in order to survive summary judgment.
The record on summary judgment reveals a search that was far less violent or burdensome compared to the search that Carpenter's pleadings previously obliged me to imagine at the motion to dismiss stage. Similarly, the record reveals a far diminished role for Schrader in the search, and a complete absence of supervisory authority for Schrader over the other participating agents. Although there may or may not have been isolated incidents of unreasonableness on the part of agents executing the search, Schrader was not personally involved in such incidents, and accordingly cannot be held liable for them.
For the foregoing reasons, Schrader's motion for summary judgment (doc. # 129) is granted, and Schrader's motion to dismiss (doc. # 127) is denied as moot.
So ordered.
