SWAT Teams to Search for Documents?

The lawyer was at the very least honest, even if the words he spoke were chilling.

“Does the Internal Revenue Service take the position that every time its agents search a location for documents the agents can do so in Kevlar jackets with guns drawn?” The judge was asking the question in a tone that suggested the lawyer ought to be careful in responding, so the lawyer did what unskilled advocates sometimes do — he evaded.

The scene was a federal courtroom in Bridgeport. The occasion was a hearing on a lawsuit filed against the commissioner of the Internal Revenue Service, the head of the IRS criminal division and the officer responsible for leading a search party of dozens of tax agents.

At issue was a matter as old as the republic: Did the manner in which federal agents executed a search warrant violate the Fourth Amendment to the United States Constitution?

The Fourth Amendment is majestic in purpose but, on its face, almost meaningless: It prohibits unreasonable searches and seizures. Reasonableness, like beauty, is in the eye of the beholder.

At the time of the founding of this republic, the king’s men had the right to serve much-hated “general warrants.” These warrants gave the government an almost unlimited right to search a home or place of business, or to arrest a person.

The Fourth Amendment’s purpose was to ban general warrants and to place strict limits on what the government can search for, or when a person can be arrested. It requires, in the case of a search, a reviewing magistrate, or judge, to give permission to agents to search.

Agents are required to describe precisely what they are searching for and why they believe they need it. Warrantless searches are, or at least were, regarded with deep suspicion.

In a post-9/11 world, many of us are prepared to trade a little liberty for some security. The result is that exceptions to the warrant requirement have expanded, giving government increasing power to search and seize with no warrant.

Deciding what is and is not reasonable makes litigation about the scope of the Fourth Amendment a source of endless dispute. More often than not, judges decide the matter of reasonableness. Sometimes, judges make this decision in the context of a motion to suppress evidence illegally seized. On other occasions, judges decide what is reasonable in civil suits brought by ordinary people challenging the conduct of individual government agents, as was the case in Bridgeport.

“Does the Internal Revenue Service take the position that every time its agents search a location for documents they can do so in Kevlar jackets, with guns drawn?” The judge asked again.

And finally, Uncle Sam’s lawyer, the fancy pants flown in from Washington to be the voice of power made manifest, answered.

“Essentially, yes,” he said.

Hearing the words stunned me. He was telling the judge that in the federal government’s view, there is nothing wrong with arming dozens of tax agents, dressing them in Kevlar jackets, and setting them loose on a business office to ransack the premises with guns drawn, holding occupants against their will and forbidding them access to lawyers as they engage in a 19-hour search for documents. SWAT tactics are now the taxman’s everyday tools.

The government lawyer had traveled to Connecticut from the nation’s capital to ask the judge to dismiss the suit. He thought the IRS agents should be shielded from the suit because they were just doing their job, and the law did not clearly establish they could not behave as we alleged they had done. I worried the judge would agree with the government and grant what is known as qualified immunity to the agents.

Qualified immunity is a thief in the night, a judicially created doctrine that keeps the overwhelming majority of civil rights claims from advancing. No constitutional amendment supports such immunities. No act of Congress created it. Judges just made it up, out of whole cloth, effectively slamming the courthouse door in the face of litigants seeking to raise constitutional claims. In the past 20 years, qualified immunity decisions have multiplied like the devil’s own spawn.

The judge seemed almost outraged by the IRS lawyer’s nonchalance. In the judge’s view, the plaintiff had alleged facts sufficient to defeat a claim of immunity, at least as to those officers directly involved in the search.

But here is where things get tricky.

The government is certain to appeal a decision denying immunity. An appellate court will in that case evaluate the allegations of the complaint to determine whether they state a cause of action, assuming, without evidence or further proof, that the allegations of the complaint are both accurate and true. It is what the law calls an interlocutory appeal, an appeal taken before a jury makes a final decision.

The judge then did something that stunned me. He dismissed the action, giving the plaintiff 60 days to refile a new complaint.

“Don’t do that, judge,” I argued. “It will just encourage the IRS to do this again.”

But the judge was far wiser than I am. He was giving us a chance to create a better record, to allege more facts and circumstances so that when the next round of arguments comes, the plaintiff will be better prepared not just to win the right to go to trial, but also to succeed on appeal.

The judge, it appeared, was outraged at the government’s casual embrace of what we called thuggery. He knows we will be back to fight against armed searches by federal agents seeking documents. He also knows the case will be appealed. It is the sort of case that has Supreme Court written all over it.

The judge, I suspect, is a Fourth Amendment purist. We’re working on that new complaint now, and we’re looking for a fight: Government agents with guns drawn searching for documents? It’s not just unreasonable; it’s obscene.


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