CA9: IRS agent’s need to watch ptf pee during SW was unreasonable; they didn’t do that to her husband when he did

Plaintiff’s claim that an IRS CID investigator had to watch her go to the bathroom just in case she was hiding evidence survived a qualified immunity challenge. The right to bodily privacy was established at the time, and the officer’s claim that it was necessary wasn’t borne out by the facts. Plaintiff’s husband had to use the bathroom a half hour earlier during the search and nobody watched him. Ioane v. Hodges, 2019 U.S. App. LEXIS 28475 (9th Cir. Sept. 19, 2019):

The panel held that the scope of the intrusion into plaintiff’s bodily privacy here was significant, and weighed in favor of a determination of unreasonableness. In addition, the manner of Agent Noll’s intrusion weighed in favor of concluding that the intrusion was unreasonable. Further, the panel held that none of the justifications Agent Noll offered for initiating the search were borne out by the facts. The panel affirmed the district court on this issue.

The second part of the qualified immunity test required a determination whether, at the time of Agent Noll’s actions in June 2006, the law was clearly established. The panel held that by 2006, much of the Circuit’s precedent regarding the right to bodily privacy had been established. The panel held that a reasonable officer in Agent Noll’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. The panel concluded that the unlawfulness of Agent Noll’s conduct was beyond debate, and Agent Noll was not entitled to qualified immunity.