Metropolitan News-Enterprise


Tuesday, September 9, 2003


Page 3


Woman Can Sue IRS Agent Over Allegedly Brutal Search—Court


By a MetNews Staff Writer


An Orange County resident can sue an Internal Revenue Service agent for violation of her Fourth Amendment rights, based on claims the agent used excessive force in restraining her during the execution of a search warrant, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Gayle Bybee claims that agent Andrew Erath grabbed her by the arms, forcibly threw her to the ground, twisted her arms, and handcuffed her. The handcuffs were tight and caused her great discomfort until they were loosened about 30 minutes into her detention, which lasted several hours, she alleged.

Bybee alleged that she was living on the third floor of a three-story Sunset Beach building that was raided by Erath and 12 other agents in July 1998. The building owner, Lynne Meredith, is a well known tax protester whose organization, “We the People,” maintained offices in the building.

The IRS has charged Meredith and her associates with various offenses, including filing false returns, attempting to interfere with the administration of tax laws, and conspiracy to defraud the United States.

Meredith, Bybee, and others sued Erath as a result of the raid. U.S. District Judge Florence Marie Cooper denied the agent’s motion for summary judgment, in which he claimed qualified immunity.

The government appealed only as to the claims of Bybee. In a decision by a divided panel, the Ninth Circuit reversed in part, saying the agent is immune from being sued for unlawful detention, but said Bybee can proceed on her claims that excessive force was used prior to her being handcuffed, and that the handcuffing caused her unnecessary pain.          

Senior Judge David R. Thompson, writing for the court, explained that while Erath’s version of events is quite different, the procedural posture of the case requires the appellate court to view the evidence in the light most favorable to plaintiff.

If Bybee’s version of the facts is accurate, the judge went on to say, “the need for force, if any, was minimal at best.” While Bybee acknowledges that she loudly demanded to see the warrant, Thompson said, the fact that the agent was investigating tax offenses, not crimes of violence, and the lack of physical resistance to the execution of the warrant should have been taken into account.

Bybee, the judge said, had a clearly established constitutional right not to be manhandled in the way she claims she was.

Thompson went on to say that the agent acted unreasonably by detaining Bybee in handcuffs during the execution of the warrant. Cases allowing such detentions during searches, the judge noted, have involved persons suspected of violent crimes or drug cases where the officers had reason to fear destruction of evidence.

He concluded, however, that because the Ninth Circuit has not previously ruled on whether a person who is not accused of a violent crime or a drug crime may be handcuffed during a search for evidence, the right asserted by Bybee was not clearly established at the time of the raid and the agent is entitled to qualified immunity as to that claim.

Judge Marsha Berzon concurred in the opinion.

Visiting Judge Thomas Meskill, a senior judge of the Second Circuit, dissented in part, arguing that Bybee should not be allowed to claim that her constitutional rights were violated because the handcuffs were unnecessarily tight for no more than 30 minutes.

“Here, a reasonable officer in Erath’s position would not have known that detaining Bybee—a healthy adult woman, who was fully clothed and seated on a couch—in tight handcuffs for thirty minutes was unlawful,” the judge wrote. “Interestingly, Bybee concedes that the handcuffs were loosened after she complained that they were uncomfortable.”

Cases cited by Thompson to support liability, Meskill argued, involved more egregious conduct.

The case is Meredith v. Erath, 02-55021.


Copyright 2003, Metropolitan News Company