State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records
from the CAREFUL!-HE'S-GOT-A-FAX-MACHINE! dept
How far can a law enforcement officer go to ensure an administrative search — one looking for records, rather than contraband — is carried out without interference? Pretty damn far, it appears.
A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board’s suspicion he was over-prescribing opioids. Okorie wasn’t facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.
Serving a warrant of this type — one not linked to any criminal accusations — takes a village, apparently. From the decision [PDF]:
According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.
Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force — nine officers, most of them armed — was followed by more shows of force. One officer in particular — a board investigator — was especially enthusiastic about ensuring Dr. Okorie didn’t leave the premises or disrupt the search.
On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.
This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn’t the extent of the investigator’s abuse of his position.
Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.
The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn’t act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there’s a dearth of caselaw related to the Fourth Amendment and administrative searches.
The Fifth Circuit Court notes that these cases are becoming more common — suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn’t a law enforcement agent, the cases haven’t been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.
The court is right about Dr. Zadeh’s rights: They were violated.
But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.
To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.
There’s no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie’s claims are valid. There was nothing about this search that justified the show of force by Dalton.
Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.
Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.
Even so, the lack of anything on point means Dalton can’t be held accountable, seeing as he was the first to violate someone’s rights in this particular manner.
As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.
Here’s the silver lining: if any armed officer decides to violate someone’s rights this way in the future during an administrative search… well, they’ve been duly warned.
Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.
That’s the bright line. It’s very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented “heightened security concerns.” Careful with those “furtive movements,” searchees.