DAVID HAGEN, District Judge
Before the court is defendant Quirk's renewal of motion for summary judgment (#26). Plaintiff has opposed (#28), Quirk has replied (#31) and Quirk has given notice of additional authority (#32). Also before the court is defendant The United States of America's (U.S.) motion to dismiss or in the alternative motion for summary judgment (#27). Plaintiff has opposed (#29) and the US has replied (#30).
Remaining in this case are plaintiff's Federal Tort Claims Act (FTCA) counts against the U.S. and her unreasonable seizure case against Quirk. This order will address in turn (1) plaintiff's claims against the U.S. and (2) plaintiff's claim against Quirk.
I. Plaintiff's FTCA Claims against the United States
Plaintiff has alleged FTCA claims of trespass, assault, false imprisonment, intentional infliction of emotional distress and conversion against the U.S. The U.S. has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(1), or in the alternative for summary judgment. For the following reasons, the U.S.'s 12(b)(1) motion is granted.
Standard
A motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) may be made on the basis that the complaint fails to allege grounds for federal subject matter jurisdiction as required by Fed.R.Civ.P. 8(a). Meliezer v. Resolution Trust Co., 952 F.2d 879, 881 (5th Cir. 1992); Thornhill Publ'g Co. v. General Tel. Elecs., 594 F.2d 730, 733 (9th Cir. 1979). Although the defendant is the moving party on a motion to dismiss, it is the plaintiff who, as the party seeking to invoke the court's jurisdiction, bears the burden of establishing subject matter jurisdiction. Hexom v. Oregon Dept. of Transp., 177 F.3d 1134, 1135 (9th Cir. 1999). The court in effect presumes that it lacks jurisdiction until the plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).
The nature of the burden of proof varies, however, depending on whether the motion is a facial or factual attack on the complaint. When considering a Rule 12(b)(1) motion attacking a complaint on its face, the plaintiff must affirmatively allege the existence of federal jurisdiction because the court will not infer it from the allegations. TOSCO v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001), citing Smith v. McCullough, 270 U.S. 456, 459 (1926). Also, with a facial attack, the court must presume that the plaintiff's allegations are true. Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2000). In contrast, no presumption of truth attaches to the plaintiff's allegations with a factual attack. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
A. 28 U.S.C. § 2680(c)
Congress has elected to waive sovereignty immunity for some suits for damages under the Federal Tort Claims Act. 28 U.S.C. §§ 2671- 2680. However, some exceptions exist in § 2680 to the otherwise broad waiver of sovereign immunity. Relevant here is § 2680(c) which bars "any claim arising in respect of the assessment or collection of any tax." This provision has been construed quite broadly by the circuits as foreclosing an action against the U.S. where the activity is related, "however remotely, to a bona fide effort to assess or collect tax debt." Perkins v. US, 55 F.3d 910, 916-917 (4th Cir. 1995); see also Morris v. U.S., 521 F.2d 872, 874 (9th Cir. 1975) (Even tortious conduct cannot be sued upon where the conduct alleged arose from tax assessment or collection); see also Capozzoli v. Tracey, et al., 663 F.2d 654, 658 (5th Cir. 1981) ("Section 2680(c) has been interpreted broadly by the courts to preclude suits for damages arising out of the allegedly tortious activities of IRS agents when those activities were in any way related to the agents' official duties."). The Supreme Court has not directly ruled on the `tax' portion of § 2680(c). The Supreme Court did interpret the section broadly when considering damages caused by negligent customs agents. Kosak v. U.S., 465 U.S. 848, 852-855 (1984).
"The [FTCA] shall not apply to . . . [a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer . . ." 28 U.S.C. § 2680(c).
B. Factual Background
The United States' 12(b)(1) motion is a `factual attack' on plaintiff's assertion that this court has subject matter jurisdiction. It is a factual attack because subject matter jurisdiction turns on the issue of whether the IRS agent, upon whose actions plaintiff's FTCA claims are based, was engaged at that time in efforts to collect on taxes-if he was so engaged, then this court cannot entertain plaintiff's FTCA claims due to § 2680(c). As this 12(b)(1) motion calls into question the very power of the court to hear the case, the court must weigh the evidence to confirm its jurisdiction. Therefore, plaintiff's allegations are entitled to no presumption of any kind. See White v. Lee, 227 F.3d at 1242; see also Moore's Federal Practice, § 12.30[4], at 12-39 to 12-42 (3d ed. 2004).
On December 8, 2000, an IRS special agent arrived at plaintiff's home with an IRS officer-in-training, seeking information regarding the personal property of one Joseph Conforte, who had been under investigation by the IRS and who had a large, outstanding tax liability. (#27, Ex. B at 4-8). Plaintiff had previously been associated with Conforte and it was believed that she might have been in possession of some of his property. Id. at 5. While at plaintiff's home, the IRS agent had an altercation with a male acquaintance of the plaintiff, during which the male acquaintance made threats against the family of the IRS agent. Id. at 10-12. This altercation led to the events of Part II of this Order, infra, when the IRS agent requested assistance from the Storey County Sheriff's Office to determine the identity of the man so that criminal charges could be filed. It is plain from a review of the IRS agent's declaration, (#27, Ex. A), and his deposition, (#27, Ex. B), that the IRS agent came to plaintiff's home as part of an ongoing tax investigation. There is no support for plaintiff's allegation that the IRS agent simply came there to harass her. For the purposes of plaintiff's FTCA claims, this factual inquiry need proceed no further.
C. Legal Analysis
The IRS agent was engaged in a `bona fide' ongoing investigation relating to taxes owed by a third party and approached plaintiff regarding the investigation. The torts pled by plaintiff all stem from this visit to her home. Therefore, all of the torts pled by plaintiff took place in the midst of the tax investigation and as such are exempted from the FTCA's waiver of sovereignty by virtue of § 2680(c). Morris, 521 F.2d at 874; see also Perkins, 55 F.3d at 916-917. This court therefore lacks subject matter jurisdiction and plaintiff's FTCA counts against the United States must be dismissed.
II. Plaintiff's Unreasonable Seizure Claim Against Quirk
Plaintiff's remaining count against Quirk is for unreasonable seizure. Quirk has moved for summary judgment and has asserted that he is entitled to qualified immunity. Plaintiff has not brought sufficient evidence to prove her 25-30 minute seizure was constitutionally `unreasonable,' therefore her claim will fail before the court reaches the merits of the qualified immunity inquiry. Regardless, the detention was so brief, and the law on detaining bystanders so unclear, that Quirk is entitled to qualified immunity.
This court previously determined that plaintiff was `seized' by Quirk (#22).
A. Factual Background
In resolving a motion for summary judgment, the facts are viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Later on December 8, 2000, the Storey County Sheriff's Office was called by the IRS agent and told that a man at plaintiff's home had threatened the IRS agent's family, and that the offender's name was needed for criminal charges. (Quirk's dep. at 8-9). Defendant Quirk, a Storey County Sheriff's Deputy, was assigned to travel to plaintiff's home to get the information necessary. Id. Quirk knocked on plaintiff's door and heard a voice say `come in.' Id. at 14. Quirk opened the door and said `hello,' but did not enter the residence. Id. He then determined that the voice had come from a pet bird near the doorway. Id. at 30-31. He also saw a man in the hallway talking on a cordless phone. Id. at 14. The man came to the door. Quirk told him that he was there about the earlier incident, and asked the man questions about it. Id. After directing Quirk to join him on the porch, the man declined to answer the questions and handed the phone to Quirk, stating "here, talk to [plaintiff]." Id. at 14-15.
Quirk then spoke to plaintiff about the incident with the IRS agent, and learned enough to know that the man on the porch with him was the man who had the altercation earlier in the day with the IRS agent. Id. at 16. Quirk did not get that man's name from plaintiff. Id. at 16-17. Quirk handed the phone back to the man, and plaintiff told the man to not talk to Quirk and to go back inside the house. (Pl.'s dep. at 21 and 39-40). Plaintiff further told the man she was coming home. Id. Quirk asked the man for his name, but the man refused to provide it. (Quirk's dep. at 17). Quirk informed the man that he was required by Nevada law to provide his name to the officer. Id. The man told Quirk that "the only way you are going to find out who I am is if you take me to jail." Id. Quirk then told him that he was under arrest, whereupon he dashed into the house, slammed the door and dead-bolted it. Id. at 17-18. Quirk tried to talk to the man through the door but was unsuccessful, and thought the man's behavior to be "bizarre." Id. at 22-23. Quirk then radioed his dispatch and requested the assistance of officers from the City of Sparks, who had the closest law enforcement units available to respond. Id. at 19-21.
Plaintiff has claimed that Quirk's attempt to arrest the man was illegal, and thus made the continuing presence of the officers and their subsequent questioning of her unconstitutional. Pl.'s Opp. to Def.'s Mot. for S/J (#28). However, the constitutionality of the Nevada statute, which makes failure to identify oneself to an inquiring police officer a crime, was recently upheld by the Supreme Court. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al., 124 S.Ct. 2451 (June 21, 2004).
Upon arriving home, plaintiff saw more than half a dozen police officers surrounding her home, with their guns drawn and trained on her house, (Pl.'s dep. at 23), to prevent the man inside from escaping. (Quirk's dep. at 21). Plaintiff pulled her vehicle into the driveway, in so doing going past several of the officers who had their guns drawn. (Pl.'s dep at 24). Upon exiting her vehicle, plaintiff was met by Quirk, who questioned her about the man who had locked himself inside the house. (Quirk's dep. at 23-24). Plaintiff, concerned about her dogs and her bird, tried to go into her house. (Pl.'s dep. at 73). Quirk told her she could not go into the house, but she nevertheless attempted to do so. (Quirk's dep. at 24). Quirk then grabbed plaintiff by her arms and shoulders and steered her away from the house towards some officers at a patrol car and began asking her questions about her home and the man inside. Id. at 24-25. At one point Quirk asked plaintiff for her house keys, but plaintiff did not provide them. (Pl.'s dep. at 28).
Plaintiff has been inconsistent on `when' she was grabbed by Quirk. In her complaint (#2 at para. 15), plaintiff alleges that Quirk grabbed her after asking her some questions. This is consistent with Quirk's motion briefs and deposition. However, at her deposition, plaintiff claimed Quirk grabbed her as soon as she stepped out of her vehicle before beginning to question her. (Pl.'s dep. at 27).
Before Quirk and plaintiff reached the officers at the patrol car, Quirk overheard a radio communication to another officer reporting that the man inside the house had threatened to shoot the officers on the other side of the house. Id. at 24-25. Quirk and plaintiff reached the officers at the patrol car, where she was questioned further about the man in the house. Plaintiff told the officers what she believed the man's name to be. (Pl.'s dep. at 70). Quirk and the other officers continued to question plaintiff about the man and her house. However, following a discussion among the officers, plaintiff was placed into the back seat of the patrol car, because the police were not satisfied with her answers and because of the apparent danger from the man inside the house. (Quirk's dep. at 27-29, 32-33). The police car door was then closed. (Pl's dep. at 36). Quirk did not place plaintiff into the patrol car, but was part of the discussion that led to plaintiff being put into the patrol car. ( Id. at 42; Quirk's dep. at 28-30).
Quirk and the other officers then tried to deal with the man inside the house, but were unsuccessful in gaining his name or in getting him to leave the house. (Quirk's dep. at 27). After 10-15 minutes, the officers decided that it was best to `de-escalate' the situation by leaving, to return later after things had calmed down. Id. Plaintiff was released from the patrol car after being locked inside for 15 minutes, (Pl.'s dep. at 37), and was told that she could leave, but could not enter the house. (Quirk's dep. at 27). Plaintiff was detained in all for approximately thirty minutes. She returned to her vehicle and left. Id. Defendant and the other officers then left as well.
B. Discussion
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. Lynn v. Sheet Metal Workers Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the respondent must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). "A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation." British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). Moreover, "[i]f the factual context makes the non-moving party's claim of a disputed fact implausible, then that party must come forward with more persuasive evidence than otherwise would be necessary to show there is a genuine issue for trial." Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998), citing Cal. Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
The defense of qualified immunity is addressed under the framework established in Saucier v. Katz, 533 U.S. 194 (2001). As a threshold matter, the Court must determine whether the facts, "[t]aken in the light most favorable to the party asserting the injury . . . show that the [defendant's] conduct violated a constitutional right." Saucier, 533 U.S. at 201. Then, the Court must determine whether the right was clearly established at the time of the alleged violation. Id. Finally, the Court must determine whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.
i. Unreasonable Seizure
The plaintiff has alleged that Quirk violated her Fourth Amendment right to be free from unreasonable seizures. In determining whether a seizure is reasonable, the normal calculus is a balance between "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." U.S. v. Place, 462 U.S. 696, 703 (1983). The court must determine whether "the totality of the circumstances justified a particular sort of search or seizure." Tennessee v. Garner, 471 U.S. 1, 9 (1985). "The `reasonableness' . . . must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 109 S.Ct. 1865, 1872 (1989), citing Terry v. Ohio, 392 U.S. 1, 20-22 (1975). "It is imperative that the facts be judged against an objective standard." Terry, 392 U.S. at 21.
In this case, the justification for the seizure of plaintiff was officer safety, the safety of the plaintiff herself and securing the presence of plaintiff to help bring order to the situation. Currently, the law regarding police seizures of bystanders stems from Michigan v. Summers, in which the Supreme Court stated "[i]n assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the "articulable facts" supporting the detention are relevant." 452 U.S. 692, 702-703 (1981). The Supreme Court then gave three law enforcement interests at issue during the seizure of bystanders: 1) preventing flight in the event that incriminating evidence is found; 2) minimizing the risk of harm to officers by their exercising "unquestioned command of the situation"; and 3) facilitating the orderly completion of the search by ensuring the presence of the occupants. Id.
In Summers, the court noted that "the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek will normally be obtained through the search and not through the detention." Summers, 452 U.S. at 701. While Summers dealt with the execution of a search warrant, this fits with other Fourth Amendment law, in that "[t]he scope of a detention must be carefully tailored to its underlying justification" because "a seizure becomes unreasonable when it is more intrusive than necessary." Ganwich v. Knapp, 319 F.3d 1115, 1122 (9th Cir. 2003), citing Florida v. Royer, 460 U.S. 491 (1983) (internal quotations omitted).
Courts have extended the "unquestioned command" safety rationale (or "narrowly tailored" detention) of Summers to persons who arrive at the location during search warrant executions, U.S. v. Bohannon, 225 F.3d 615, 617 (6th Cir. 2000) (Safety of bystander and officers warranted detention of bystander where bystander showed "every intent" of walking into house where armed officers were conducting a search), see also, Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir. 1995) ("Although Summers itself only pertains to a resident of the house under search, it follows that the police may stop people coming to or going from the house if police need to ascertain whether they live there"), bystanders during arrest warrants, U.S. v. Enslin, 327 F.3d 788 (9th Cir. 2003) ( Cert. denied, 124 S.Ct. 308 (2003)), vehicle passengers during pullovers, Maryland v. Wilson, 519 U.S. 408, 413 (1997) ("On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger."), even bystanders who approach the location being searched but never enter the property. Burchett, et al. v. Kiefer, et al., 310 F.3d 937 (6th Cir. 2002) (Neighbor seized after failing to obey police). They have also found that detention is still reasonable even where fewer than all three Summers law enforcement interests exist. Leveto v. Lapina, 258 F.3d 156, 167 n. 5 (3d Cir. 2001).
However, there are limits. For example, in Holland ex rel. Overdorff v. Harrington, where a SWAT team seized children and literally held them at gunpoint while a search was underway, the seizure was found unreasonable to the extent that, following the initial seizure, the threat of deadly force was unjustified as the children posed no threat of harm. 268 F.3d 1179 (10th Cir. 2001). In Ganwich, et al., v. Knapp, et al., the Ninth Circuit found a seizure unreasonable where the police, while justified in seizing the occupants of a building being searched, went beyond what was necessary to complete the search when they held the occupants incommunicado for several hours in an attempt to get them to submit to police interrogation. 319 F.3d at 1125.
The rulings of the Supreme Court and the Circuits have developed a policy, based on Summers, that police have authority to detain persons in the vicinity of a search for the limited purpose of facilitating the search and rendering the area safe for the officers, bystanders and subjects of the search, during the period of the search. The reasonableness of the seizure of a bystander will vary, depending on the conditions of the search itself and the method of seizure, in addition to the actions, intent and any threat posed by the bystander.
This case does not concern a situation where a bystander, wholly unrelated to the situation at hand, has wandered onto the scene. Here, while not the subject of the search, plaintiff nonetheless had an obvious connection to it. The house belonged to her, she had earlier spoken with Deputy Quirk on the telephone during the events that led to the search, apparently knew the man inside the house and despite being told to stay back by the Quirk, had attempted to enter the house while it was surrounded by officers with guns drawn and pointed at it.
In this case, Quirk and the other officers had a legitimate reason to seize plaintiff. Initially, Quirk stopped plaintiff from entering the house in order to prevent her from disrupting the search and possibly endangering herself or the officers, as well as to ask her questions about her home and the man inside. Quirk's seizure of plaintiff was reasonable due to the inherent danger of the situation and plaintiff's seeming obliviousness to it, as demonstrated by her brazen attempt to pass by Quirk into the house and the other officers' line of fire. In addition, as it was plaintiff's home, it could reasonably be assumed that plaintiff could provide valuable information about the home and the man inside, of whom very little was known and whose behavior was noticeably erratic. Furthermore, if the police had reason to enter the residence, whether through a warrant or because of exigent circumstances, having plaintiff present could remove the need to cause damage to enter the house and plaintiff could additionally provide the officers with information about any intricacies of the house.
The placement of plaintiff into the patrol car is a more invasive seizure than simply detaining her. However, in light of the "totality of the circumstances," Garner, 471 U.S. at 9, when the man inside the house threatened to shoot the officers, this escalated the situation and the government's interest in the safety of the officers and the plaintiff. When the officers decided to leave the scene to `de-escalate' the situation, they released plaintiff promptly.
Here, the balance of interests tips in favor of the police as "[t]he risk of harm to both the police and [plaintiff]" was minimized by Quirk exercising "unquestioned command of the situation." Summers, 452 U.S. at 702-703. The detention and prompt release of plaintiff was `narrowly tailored' to suit the needs of the situation-safety of officers and bystanders, and the presence of the occupant to facilitate the search. Quirk's seizure of plaintiff was not unreasonable in light of the Fourth Amendment.
ii. Qualified Immunity
Regardless of the reasonableness of the seizure, Quirk is still entitled to qualified immunity because the law on the detention of bystanders was not clearly developed at the time of the seizure. The second step in a qualified immunity analysis is whether the right in question was "clearly established." Saucier, 533 U.S. at 201. "The relevant inquiry in determining whether a right was clearly established is whether it would be clear to a reasonable officer that his or her conduct was unlawful in the situation confronted." Ganwich, 319 F.3d at 1124, citing Saucier, 533 U.S. at 202. Absent probable cause, police officers may not seize a person, "except in a handful of well-defined situations." Id. at 1125, citing Skinner v. Railway Labor Execs. Ass'n., 489 U.S. 602, 619-620 (1989).
Initially, it should be noted that there is no clear law detailing an officer's ability to legally detain bystanders during a police action. This benefits Quirk, in that police officers are not required to read cases and law review articles to synthesize the controlling rule of law. That being said, while the seizure of plaintiff was not the search warrant execution at issue in Summers, it does fall squarely within the bounds of `bystander seizures' as developed by the Supreme Court and the circuits. Here, Quirk did not venture outside the boundaries of what was necessary for the situation at hand. Plaintiff had not cooperated when questioned about the man and had attempted to enter the residence while it was being cordoned off by the police. Not only did her presence endanger herself, but her intentional or unintentional interference could have endangered the officers present. In addition, as the house in question was plaintiff's home, securing plaintiff's presence could facilitate any necessary search of the house. Finally, plaintiff was only detained for 30 minutes. When the police determined that it was best to `de-escalate' the situation by leaving, they promptly let plaintiff go. at hand. As such a reasonable officer would have felt the conduct undertaken by defendant was lawful in the situation presented. Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). For the foregoing reasons, Quirk is entitled to qualified immunity.
III. Conclusion
Plaintiff's claims against the U.S. are barred by sovereign immunity and must be dismissed. Plaintiff's Fourth Amendment `unreasonable seizure' claim against Quirk fails to state a constitutional violation and is in any case barred by the doctrine of qualified immunity.
IT IS ORDERED that defendant Quirk's motion for summary judgment (#26) be GRANTED. IT IS FURTHER ORDERED that defendant The United States of America's motion to dismiss (#27) be GRANTED. The Clerk will enter judgment accordingly.