United States District Court, D. Connecticut
December 14, 2016
DANIEL CARPENTER, et al., Plaintiffs,
COMMISSIONER, IRS, et al., Defendants.
R. UNDERHILL, United States District Judge
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; Victor Song, Chief of the IRS‘
Criminal Investigation Division; Shaun Schrader, a special
agent of the Criminal Investigations Division, and Unknown
Agents 1-72, special agents of the Criminal Investigation
Division. The complaint seeks, inter alia,
compensation for alleged Fourth, Fifth, and Sixth Amendment
violations arising from the search of Grist Mill Capital for
documents related to alleged tax fraud. (doc. 1) After
significant motion practice, Schrader has now filed a renewed
motion to dismiss the Second Amended Complaint
("SAC"), on the grounds that the claims are barred
by qualified immunity and the rule articulated by the Supreme
Court in Heck v. Humphrey, 512 U.S. 477 (1994).
(doc. 72) He identifies two changed circumstances justifying
this renewed motion: first, on December 24, 2015, in a
criminal case involving a separate fraudulent scheme, 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.). Second, on
August 21, 2014, after the second motions to dismiss were
filed but before they were decided, the Second Circuit issued
Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014),
cert. denied sub nom. Torresso v. Terebesi, 135
S.Ct. 1842 (2015), which sets out principles of Fourth
Amendment law that the parties agree may have impact in this
case. On October 5, 2016, I denied Schrader‘s motion
for conversion to a motion for summary judgment (doc. 82),
and on October 18, 2016, I held a hearing on the pending
motion to dismiss.
following reasons, I grant in part and deny in part
Schrader‘s motion to dismiss.
Standard of Review
Motion to Dismiss for Failure to State a Claim Upon Which
Relief May Be Granted
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)).
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).
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).
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. See United States v.
Carpenter, 1:04-cr-10029 (GAO) (D. Mass.) [hereinafter,
"the Massachusetts case"].
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). The affidavit does not reference any
specific dangers anticipated in executing the proposed search
nor any exigent circumstances justifying a highly armed raid
on the property. SAC at ¶ 18. Carpenter alleges that
Schrader knowingly included various misstatements in the
affidavit. See Id. at ¶ 16- 17.
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.
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.
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
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.
date, Carpenter and his related entities have not been
indicted for the tax offenses alleged in the warrant
First Motions to Dismiss
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).
Second Motions to Dismiss
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.
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.
The STOLI Case
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,  Carpenter filed a motion to
suppress that evidence on the grounds that: (1)
Schrader‘s affidavit 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). The motion also alluded to the manner
in which the search was conducted as unreasonable and to
Fifth Amendment violations, but did not provide substantial
briefing on those points. Id.
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.
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.
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
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 granted without prejudice to renewal if the conviction is
invalidated. Carpenter conceded that he was withdrawing his
Fifth Amendment claim as premature. Accordingly,
Schrader‘s motion to dismiss that claim is granted
without prejudice to renewal. Carpenter also clarified at the
hearing and in his opposition brief that he does not assert a
stand-alone Sixth Amendment claim. See Pls.‘
Opp‘n Br. at 23 n.9. Accordingly, Schrader‘s
motion to dismiss that claim is denied as moot. Two
additional issues have been set on a separate briefing
schedule: (1) whether the identities of the John Doe
defendants can be subject to discovery; and (2) the viability
of any claims asserted on behalf of GMC. See (docs.
85, 88). Thus, the sole issue to resolve on this motion to
dismiss is whether qualified immunity bars Carpenter‘s
Fourth Amendment claims arising from his allegations that the
search was conducted in an unreasonable manner.
argues that the remaining Fourth Amendment claims,
which are based on allegations that Schrader was personally
responsible for conducting the search in an unreasonable
manner, are barred by the doctrine of qualified
immunity. Drawing all reasonable inferences in favor
of Carpenter, the Second Amended Complaint alleges that the
force used to effectuate the search of his property was
unreasonable and excessive because it involved 72 agents
engaged in "commando" tactics, such as wearing
bullet-proof vests and "brandishing" automatic
weapons specifically in order to intimidate Carpenter, and
that the search resulted in the needless destruction of
Carpenter‘s property. SAC at ¶¶ 8, 9, 19.
Carpenter further alleges that the excessive force was used
deliberately, at least in part because of Carpenter‘s
reputation as an "anti-government" actor.
Id. at ¶ 26. He also alleges that Schrader
unreasonably seized Carpenter during the search by subjecting
him to an extended involuntary detention for the purpose of
coercing incriminating statements. Id. at ¶ 28.
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.
Supreme Court has articulated a three-part test for
considering a claim of qualified immunity. First,
court must determine whether a constitutional violation could
exist on the facts as presented to the court.
Saucier, 533 U.S. at 201. Second, if the facts
support a claimed violation of a constitutional right, the
court must determine if the right alleged is "clearly
established." Id. "To determine whether a
right is clearly established, [courts] look to (1) whether
the right was defined with reasonable specificity; (2)
whether Supreme Court or court of appeals case law supports
the existence of the right in question, and (3) whether under
preexisting law a reasonable defendant would have understood
that his or her acts were unlawful." Scott v.
Fischer, 616 F.3d 100, 105 (2d Cir. 2010). Even if there
is no Supreme Court or Second Circuit case law directly on
point, a right may be considered "clearly
established" if decisions by the Second Circuit or other
circuit courts "clearly foreshadow a particular ruling
on the issue." Id. (internal quotation marks
and citation omitted) (collecting Second Circuit cases
relying on other circuits‘ decisions). Finally, if the
first two criteria are met, the court must determine if,
based on the facts known to the officer at the time of
events, "it would be clear to a reasonable officer that
his conduct was unlawful in the situation he
confronted." Saucier, 533 U.S. at 202.
Fourth Amendment Reasonableness
Fourth Amendment protects individuals "against
unreasonable searches and seizures." "Determining
whether the use of force [during a search] was
‗reasonable‘ under the Fourth Amendment
‗requires a careful balancing of the nature and quality
of the intrusion on the individual‘s Fourth Amendment
interests against the countervailing governmental interests
at stake.‘" Terebesi v. Torreso, 764 F.3d
217, 231 (2d Cir. 2014), cert. denied sub nom. Torresso
v. Terebesi, 135 S.Ct. 1842 (2015) (quoting Graham
v. Connor, 490 U.S. 386, 396 (1989)). The Supreme Court
has used the same analysis to assess the reasonableness of a
seizure. See Michigan v. Summers, 452 U.S. 692, 699
(1981) (observing that "some seizures admittedly covered
by the Fourth Amendment constitute such limited intrusions on
the personal security of those detained and are justified by
such substantial law enforcement interests that they may be
made on less than probable cause . . ."). And the Fourth
Amendment‘s "reasonableness" standard
requires that balancing be conducted through a careful
examination of the totality of the circumstances at issue.
See Palacios v. Burge, 589 F.3d 556, 563 (2d Cir.
2009) (citing Samson v. California, 547 U.S. 843,
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)
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).
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
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.
those principles in mind, I now turn to a consideration of
Carpenter‘s specific Fourth Amendment claims.
Excessive Show of Force Allegations
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
The display of weapons, and the pointing of firearms directly
at persons inescapably involves the immediate threat of
deadly force. Such a show of force should be predicated on at
least a perceived risk of injury or danger to the officers or
others, based upon what the officers know at that time.
"These are the very ingredients relevant to an excessive
force inquiry." McDonald, 966 F.2d at 294.
Where a person has submitted to the officers‘ show of
force without resistance, and where an officer has no
reasonable cause to believe that person poses a danger to the
officer or to others, it may be excessive and unreasonable to
continue to aim a loaded firearm directly at that person, in
contrast to simply holding the weapon in a fashion ready for
Id. at 1192-93. Holland involved the more
dramatic context of officers who had pointed guns at minors;
however, the same reasoning applies here.
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 weapons descended on a corporate
building in the middle of the day to facilitate a search
through his documents and to frighten him into a coercive
interrogation. Cf. United States v. Faux, 828 F.3d
130, 137 (2d Cir. 2016) (in the Fifth Amendment context,
observing that the need for 10-15 armed officers in a 4, 900
sq. foot house was "not readily apparent"
when"[n]othing in the record suggests that Faux was
suspected of being particularly dangerous; she was being
investigated for a paperwork fraud scheme, and the warrant
was to search primarily for documents rather than (for
example) weapons or drugs"). The warrant makes no
mention of any possible threat to the officers‘ safety
during the raid, nor any suggestion that Carpenter or any of
the GMC employees was prone to violence or had access to
weapons. Cf. Terebesi, 764 F.3d at 239 (holding that
the exigent circumstances doctrine had not been shown to
apply where there was no suggestion that the plaintiff
"was ready to engage in violence, had any record of or
propensity towards violence, that he had immediate access to
weapons, or indeed that he was likely to offer any resistance
at all"). And, drawing all inferences in favor of
Carpenter, the complaint can be read to suggest that the
agents continued to "brandish" their weapons
throughout the search, despite the lack of resistance from
Carpenter or any of the detained employees. Cf.
Unus, 565 F.3d at 118 (basing its determination that the
defendants had not violated the Fourth Amendment at least in
part on indications in the record that they "drew their
weapons only long enough to ensure their safety and control
of the situation-once the plaintiffs complied with the
agents‘ directives, the weapons were holstered").
In sum, Carpenter has alleged that Schrader and the agents
under his supervision engaged in a show of force wholly
unrelated to any "perceived risk of injury of danger to
the officer or others, " Holland, 268 F.3d at
1192, and continued to use such intimidation tactics long
after the site was secure and it would have been clear to any
reasonable officer that no plausible risk remained.
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.
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
relates only to the decision to deploy [the SWAT team] to
execute the search warrant. Neither Solomon nor any other
defendant is qualifiedly immune at the summary judgment stage
from any Fourth Amendment liability he may otherwise have in
connection with the planning of the raid, including any
liability for authorizing or directing the team members to
carry out the search in an unlawful manner or for failing to
intervene in constitutional violations committed by others.
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.
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
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 § 18.104.22.168.1 (effective
Nov. 10, 2004) (doc. 86-1); see also Id. at §
22.214.171.124.1 (effective Jan. 23, 2004) (same). Although the
claimed authority is far from apparent and although an
agency‘s official view of its own statutory authority
is not dispositive of whether a Fourth Amendment violation
has occurred, the existence of such a policy statement would
make it extremely difficult for Carpenter to show that any
reasonable officer would have known that the contested
actions were unlawful. See, e.g., Mountain Pure,
LLC v. Roberts, 814 F.3d 928, 933 (8th Cir. 2016)
(holding that qualified immunity applied to IRS agents
carrying weapons during a search because, inter
alia, that conduct was permitted by IRS policy).
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 126.96.36.199, provides:
(2) Special agents must conceal their handguns upon
their persons, keeping them away from public view when
conducting official business. However, special agents may
display their handguns, if they feel it will relieve a threat
against special agents or others.
(3) Special agents should draw their handguns only if there
is sufficient cause to expect they will be used and doing so
affords the agent a tactical advantage.
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
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. But that case was decided at the
summary judgment stage, after the parties had an opportunity
to investigate how much force was actually used, and why the
government actors felt such force was necessary.
Carpenter‘s allegations here are sufficient to entitle
him to the same opportunity.
Needless Destruction of Property
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.
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.
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).
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.
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.").
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). In
Michigan v. Summers, 452 U.S. 692 (1981), however,
the Supreme Court held that a warrantless detention of an
individual unsupported by probable cause but incident to a
valid search warrant may be constitutionally permissible. The
Court identified three factors: (1) the intrusiveness of the
detention; (2) the law enforcement interests served by the
detention; and (3) the nature of the articulable and
individualized suspicion on which the search was conducted.
Id. at 701-05. The Summers Court noted,
however, that "special circumstances, or possibly a
prolonged detention, might lead to a different conclusion in
an unusual case. . . ." 452 U.S. at 705
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,
Carpenter has plausibly alleged that his is the "unusual
case" where the Summers rule should not apply.
Intrusion Imposed by the Detention
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.
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.
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
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. See
SAC at ¶ 28; see also Hill, 785 F.3d at 245-46
(recognizing a Fourth Amendment claim "based on violence
or threats used to extract [a] statement" as distinct
from the use of a coerced statement, which triggers
a Fifth Amendment claim); Ganwich v. Knapp, 319 F.3d
1115, 1121 (9th Cir. 2003) (same). That interrogation is
discussed further below with respect to the governmental
interests at stake.
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.
The detention of the employees was, in some ways, more
intrusive than the detention considered in Summers.
For example, the detention of the employees took place in the
public workplace rather than a private residence. It,
therefore, implicated the "public stigma" and
"indignity" associated with police detention to a
greater degree. Moreover, the detention at issue here was
relatively long and intrusive insofar as the employees were
left handcuffed for nearly three and one half hours.
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.
Law Enforcement Interests Served by the Detention
Summers Court identified "three legitimate law
enforcement interests that provide substantial justification
for detaining an occupant:
"preventing flight in the event that incriminating
evidence is found"; "minimizing the risk of harm to
the officers"; and facilitating "the orderly
completion of the search, " as detainees‘
"self-interest may induce them to open locked doors or
locked containers to avoid the use of force."
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
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
is much less likely to uncover items that lead to an
immediate arrest. Thus, even if the search is successful, the
suspect may well remain at liberty for some time until the
evidence is examined and an indictment is obtained. As a
result, the incentive to flee is greatly diminished.
Leveto, 258 F.3d at 170.
Judge Alito observed that the need for detention to reduce
the risk of harm to the agents was also reduced.
If the agents had been conducting an investigation into a
type of offense often accompanied by violence, detention for
some length of time might have been reasonable. See
Summers, 452 U.S. at 702, 101 S.Ct. 2587;
Torres, 200 F.3d at 185, 186 (quoting
Summers, 452 U.S. at 702, 101 S.Ct. 2587, for the
proposition that narcotics searches may erupt in "sudden
violence or frantic efforts to conceal or destroy
evidence"); Baker, 50 F.3d at 1191 (noting that
occupants of a residence subject to a drug raid "are
likely to be armed"); Barlin, 686 F.2d at 87
(noting "the violent nature of narcotics crime")
(quoting United States v. Vasquez, 634 F.2d 41, 43
(2d Cir. 1980)). By the same token, if the agents had
possessed information that [the plaintiffs] were tied to a
violent group or had violent backgrounds, detention for some
period might have been justified. See Clay, 640 F.2d
at 162 (knowledge that individual "previously had been
engaged in serious criminal conduct" might justify pat
down). Here, however, there is no evidence that such a threat
existed. [The male plaintiff] was under investigation for tax
crimes, and the alleged facts do not suggest that he had any
ties to violent organizations or a record of violence.
Accordingly, it does not appear that there was any compelling
safety reason for detaining him during the lengthy search.
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.
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.").
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
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:
The interrogations did not deter the plaintiffs‘
flight, did not reduce the risk of harm to officers, and did
not assist the officers in the orderly completion of the
search. Because the interrogations of the plaintiffs were not
carefully tailored to the detention‘s underlying
justification, the detention was more intrusive than
necessary. This rendered the detentions unlawful.
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
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
The Need for Discovery
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.
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
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.
conclusion, I grant in part and deny in part Schrader‘s
motion to dismiss. Specifically, I grant the motion to
dismiss the Fourth Amendment claims alleging defects in the
warrant, as well as the Fifth Amendment claim. I deny as moot
the motion to dismiss the Sixth Amendment claim. I deny the
motion with respect to the Fourth Amendment claims involving
the unreasonableness of the search, the search exceeding the
warrant, and the prolonged detention and coercive
interrogation. The parties shall confer with one another and
propose a scheduling order for discovery within two weeks of
 Schulman has since been replaced with
John Koskinen, the current IRS Commissioner.
 He ultimately lost that second appeal.
Carpenter, however, continues to bring pro se
collateral challenges to his sentence of 36 months‘
 The affidavit has been filed on the
docket in a criminal case pending in this district before
Judge Chatigny, which is discussed further below. See
United States v. Carpenter, 3:13-cr-226 (RNC) (D. Conn.)
 At the Second Motion to Dismiss
argument, the defendants suggested that this case should be
stayed until the resolution of the criminal proceedings. I
observed that the materials at issue in the criminal
proceedings appeared to be limited to one box of documents,
out of the 322 boxes taken in the search, and that GMC was
not a party to the criminal case and accordingly could not
have its rights vindicated in that venue. I also observed
that Judge Chatigny was likely to rule on the suppression
motion before I ruled on the motions before me, thereby
avoiding inconsistent decisions. 2d Mot. To Dismiss Tr. at
 Those claims are not barred by
Heck because Judge Chatigny‘s ruling on the
motion to suppress did not decide the reasonableness of the
manner in which the search and seizure were
 Schrader also argued in his brief and
at the hearing that he cannot be held liable under
Bivens because he did not have direct or personal
involvement in the actions alleged to have caused a
constitutional deprivation. Barbera, 836 F.2d at 99.
Although respondeat superior liability is not
available for Bivens claims, supervisors who
"exhibited deliberate indifference to the rights of
[plaintiffs] by failing to act on information that
unconstitutional acts were occurring" may be held liable
for those violations. Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995); see also SAC at
¶¶ 21, 24 (alleging that Schrader showed such
indifference to the agents he was supervising). Further, as I
observed in the Order denying Schrader‘s motion to
convert this motion under Rule 12(d) (doc. 82), Schrader may
also be held personally liable for any actions he took as the
planner of the raid. See Terebesi v. Torreso, 764
F.3d 217, 234 (2d Cir. 2014), cert. denied sub nom.
Torresso v. Terebesi, 135 S.Ct. 1842 (2015).
 Drawing all inferences in favor of
Carpenter at the motion to dismiss stage, I assume that
Carpenter had an ownership interest in personal property in
his office, and that the allegation that his office was
"ransacked" implies the improper search and
destruction of those materials. See SAC at ¶
 The Supreme Court has held that
"lower courts have discretion to decide which of the two
prongs of qualified-immunity analysis to tackle first, "
and has urged court to "think carefully" before
deciding novel questions of constitutional law in the
qualified immunity context. al-Kidd, 563 U.S. at
735; Pearson, 555 U.S. at 236 (2009). But in the
highly specific Fourth Amendment context, the question
whether there was a constitutional violation and whether that
violation was "clearly established" as such are
 As discussed further below, force in
the Fourth Amendment context may include intimidation and
threats. See Terebesi v. Torreso, 764 F.3d 217, 240
(2d Cir. 2014).
 The parties appear to agree that the
term "brandish" is used here consistently with the
definition provided in 18 U.S.C. § 924(c)(4):
[T]he term "brandish" means, with respect to
a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another
person, in order to intimidate that person, regardless of
whether the firearm is directly visible to that
 The parties‘ joint submission
of the IRM correctly points out that I may take judicial
notice of information found on governmental websites, such as
the IRM. See Zurich Am. Ins. Co. v. Expedient Title,
Inc., 2015 WL 9165875, at *10 (D. Conn. Dec. 16,
Section 188.8.131.52.4(1) of the version
of the IRM that was effective during the time of the search
requires that all special agents be aware of the
agency‘s policies on the use of force. See IRM
Cat. No. 36228A (effective March 26, 2008).
 The search was described by the
court as follows:
Thirty five federal and state law enforcement agents
began their search of the bottling facility on January 18,
2012 at 8:45 a.m. The facility consisted of a bottling plant
and office space totaling approximately 100, 000 square feet.
The agents drove to the plant in a convoy with their sirens
sounding and lights flashing. Each federal agent wore a
ballistic vest and carried a handgun and secondary weapon as
required by SBA and IRS policies. During a protective sweep
of the building, agents pushed Mountain Pure employees Tracy
Bush and Scott Morgan against the wall, and one agent drew
his weapon on vice president Court Stacks while entering his
office. Neither Roberts nor Spradlin drew her firearm or
instructed any agents to draw their weapons, instead leaving
that decision to agent discretion. After finishing the
protective sweep, the agents detained the employees in the
facility‘s break room. The agents either confiscated
the employees‘ cell phones or directed them to leave
their phones in their offices, and they did not allow the
employees to make phone calls while they were
Mountain Pure LLC, 814 F.3d at 931.
 I assume for the purposes of this
motion that Carpenter has adequately alleged that he was
The Summers Court also
expressly declined to decide whether its holding would extend
to a warrant that "merely authorized a search for
evidence." Id. at 705 n.20. I note that
limitation has been interpreted by other courts as an attempt
to distinguish between the detention of third parties not
believed to be implicated in the suspected crime, see
United States v. Ritchie, 35 F.3d 1477, 1483 (10th Cir.
1994), and accordingly, I assume for the purposes of this
ruling that the fact that this was a search for evidence
rather than contraband does not itself exclude
Carpenter‘s detention from the Summers rule.
See Dawson v. City of Seattle, 435 F.3d 1054, 1066
(9th Cir. 2006) (asserting that extension is mandated by
Muehler v. Mena, 544 U.S. 93 (2005)).
 The third Summers factor
appears to concern whether the detained individual was the
perpetrator of the crime being investigated, or merely a
bystander. Because Carpenter appears to be the former, there
is no need to discuss that factor further.
 Schrader is correct that his
subjective intentions are generally irrelevant in determining
whether his actions violated the Fourth Amendment, and
accordingly, I do not discuss the plaintiffs‘ claims of
animus. See Bond v. United States, 529 U.S. 334, 339
n.2 (2000). When force is used for the purpose of improperly
coercing the plaintiff into an interrogation, however, that
purpose may be considered. See Ganwich v. Knapp, 319
F.3d 1115, 1122 (9th Cir. 2003).