Lynne Meredith Gayle Bybee Jenifer Meredith Bernadette Keller Carla Figaro, the People of California, Ex Rel. v. Andrew Erath

concurring in part and dissenting in part:

I concur in the majority’s conclusion that Erath is not entitled to summary judgment on the basis of qualified immunity on Bybee’s excessive force claim. However, I believe that Erath is entitled to summary judgment on Bybee’s unlawful detention claim in its entirety. Accordingly, I respectfully dissent from that portion of the majority’s opinion that holds the detention of Bybee in uncomfortably tight handcuffs for thirty minutes to be an unlawful detention.

As the majority notes, in Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994), this Court held that “[a] detention conducted in connection with a search may be unreasonable if it is unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy.” In Franklin , the Court held that the plaintiffs rights were violated by a detention during which the defendants acted unreasonably “by removing a gravely ill and semi-naked man [the plaintiff] from his sickbed without providing any clothing or covering, and then by forcing him to remain sitting handcuffed in his living room for two hours rather than returning him to his bed within a reasonable time after…

Opinion by Judge DAVID R. THOMPSON; Partial Concurrence and Partial Dissent by Judge MESKILL

OPINION

IRS Agent Andrew Erath had a warrant to search a three-story building for evidence of income tax violations. Gayle By-bee, who was not the target of the investigation, lived on the third floor. When she demanded loudly and repeatedly that Er-ath produce a search warrant, Erath (according to Bybee) used excessive force in handcuffing her. She was then detained in handcuffs for several hours while the search proceeded; during the first 30 minutes the handcuffs were overly tight and caused her pain.

Bybee sued Erath claiming that he used excessive force in handcuffing her and unlawfully detained her during the search, in violation of the Fourth Amendment. The district court denied Erath’s summary judgment motion, in which he contended he was entitled to qualified immunity. Er-ath then filed this interlocutory appeal. We have appellate jurisdiction. Clement v. Gomez, 298 F.3d 898, 901 (9th Cir.2002).

With regard to Bybee’s claim that Erath used excessive force in handcuffing her, and her claim that he unlawfully detained her in overly tight and painful handcuffs during the first 30…

342 F.3d 1057 Lynne Meredith; Gayle Bybee; Jenifer Meredith; Bernadette Keller; Carla Figaro, The People of California, ex rel., Plaintiffs-Appellees, v. Andrew Erath, Defendant-Appellant. No. 02-55021. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 6, 2003 — Pasadena, California. Filed September 8, 2003. COPYRIGHT MATERIAL OMITTED Gretchen M. Wolfinger, United States Department of Justice, Tax Division, Washington, D.C., for the defendant-appellant. Gayle Bybee, Pro Per, Sunset Beach, California, for the plaintiffs-appellees. Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CV-99-13100-FMC. Before: Thomas J. Meskill, * David R. Thompson, and Marsha S. Berzon, Circuit Judges. Opinion by Judge DAVID R. Thompson; Partial Concurrence and Partial Dissent by Judge Meskill. OPINION DAVID R. THOMPSON, Circuit Judge. 1 IRS Agent Andrew Erath had a warrant to search a three-story building for evidence of income tax violations. Gayle Bybee, who was not the target of the investigation, lived on the third floor. When she demanded loudly and repeatedly that Erath…