                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SHELLY J. IOANE,                          No. 16-16089
                    Plaintiff-Appellee,
                                             D.C. No.
                   v.                     1:07-cv-00620-
                                            AWI-EPG
JEFF HODGES; MICHELLE CASAREZ,
Federal Officer; BRIAN APPLEGATE,
Federal Officer; KENT SPJUTE,             ORDER AND
Federal Officer,                           AMENDED
                        Defendants,         OPINION

                and

JEAN NOLL,
               Defendant-Appellant.



      Appeal from the United States District Court
         for the Eastern District of California
      Anthony W. Ishii, District Judge, Presiding

         Argued and Submitted April 13, 2018
                Pasadena, California

              Filed September 10, 2018
             Amended September 19, 2019
2                         IOANE V. NOLL

    Before: Carlos T. Bea and Mary H. Murguia, Circuit
      Judges, and Donald W. Molloy, * District Judge.

                          Order;
                Opinion by Judge Murguia;
    Partial Concurrence and Partial Dissent by Judge Bea


                          SUMMARY **


                               Bivens

    The panel amended the opinion and concurrence filed on
September 10, 2018, and affirmed the district court’s order
denying Internal Revenue Service Agent Jean Noll’s motion
for summary judgment based on her alleged qualified
immunity in a Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), suit alleging that
Agent Noll violated plaintiff’s Fourth Amendment right to
bodily privacy during the lawful execution of a search
warrant at plaintiff’s home in 2006.

    The panel first held that plaintiff could proceed with her
Bivens suit against Agent Noll. Applying the test in Ziglar
v. Abbasi, 137 S. Ct. 1843 (2017), the panel held that this
case was similar to Bivens and therefore did not present a
“new context” where plaintiff’s claim was that a federal


    *
       The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                       IOANE V. NOLL                         3

agent conducted a warrantless search of her person in
violation of her Fourth Amendment right to bodily privacy.

     The panel turned to the issue of qualified immunity and
its first prong of reasonableness. The panel held that the
scope of the intrusion into plaintiff’s bodily privacy here was
significant, and weighed in favor of a determination of
unreasonableness. In addition, the manner of Agent Noll’s
intrusion weighed in favor of concluding that the intrusion
was unreasonable. Further, the panel held that none of the
justifications Agent Noll offered for initiating the search
were borne out by the facts. The panel affirmed the district
court on this issue.

    The second part of the qualified immunity test required
a determination whether, at the time of Agent Noll’s actions
in June 2006, the law was clearly established. The panel held
that by 2006, much of the Circuit’s precedent regarding the
right to bodily privacy had been established. The panel held
that a reasonable officer in Agent Noll’s position would
have known that such a significant intrusion into bodily
privacy, in the absence of legitimate government
justification, was unlawful. The panel concluded that the
unlawfulness of Agent Noll’s conduct was beyond debate,
and Agent Noll was not entitled to qualified immunity.

    Judge Bea concurred in part and concurred in the
judgment. Judge Bea agreed with the majority that the case
did not extend Bivens to a new context, and that the district
court did not err in denying Agent Noll’s motion for
summary judgment regarding plaintiff’s claim that Agent
Noll violated plaintiff’s clearly established constitutional
rights. Judge Bea would hold that Agent Noll’s actions
violated plaintiff’s Fourth Amendment rights as clearly
established in Ybarra v. Illinois, 444 U.S. 85 (1979). Judge
4                      IOANE V. NOLL

Bea disagreed with the majority’s holding that Agent Noll’s
actions violated plaintiff’s clearly established right to bodily
privacy.


                         COUNSEL

Gretchen M. Wolfinger (argued), Jonathan S. Cohen, and
Gilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,
Principal Deputy Assistant Attorney General; Diana L.
Erbsen, Deputy Assistant Attorney General; Tax
Division/Appellate Section, United States Department of
Justice, Washington, D.C.; for Defendant-Appellant.

Ariel Beverly (argued) and Norvik Azarian (argued),
Certified Law Students; Paula M. Mitchell, Supervisor,
Loyola Law School; E. Martin Estrada, Munger Tolles &
Olson LLP, Los Angeles, California; for Plaintiff-Appellee.
                           IOANE V. NOLL                               5

                              ORDER

   The opinion and concurrence filed on September 10,
2018, and appearing at 903 F.3d 929, is hereby amended. An
amended opinion and concurrence is filed herewith.

    The parties are hereby granted leave to file a petition for
rehearing and/or suggestion for rehearing en banc, pursuant
to FRAP 40 and G.O. 5.3(a).



                             OPINION

MURGUIA, Circuit Judge:

    Plaintiff Shelly Ioane filed a Bivens suit against Internal
Revenue Service (“IRS”) Agent Jean Noll. Shelly alleged
that Agent Noll violated her Fourth Amendment right to
bodily privacy when, during the lawful execution of a search
warrant at her home, Agent Noll escorted Shelly to the
bathroom and monitored Shelly while she relieved herself.
Agent Noll moved for summary judgment, claiming that she
was entitled to qualified immunity. The district court denied
Agent Noll’s motion, and she appeals. 1


    1
      At summary judgment, plaintiffs included Shelly and her husband,
Michael Ioane, Sr. Plaintiffs initially pursued several causes of action
against the United States and the Federal agents who executed the search
warrant on the Ioane residence. However, the only claims remaining at
the summary judgment stage were for excessive force and invasion of
bodily privacy in violation of their Fourth Amendment rights. The Ioanes
claimed that the Federal agents, including Agent Noll, used excessive
force when the Federal agents pointed guns at the Ioanes’ heads, and that
Agent Noll invaded Shelly’s bodily privacy when Agent Noll entered the
bathroom with Shelly and monitored Shelly while she relieved herself.
6                      IOANE V. NOLL

    We have jurisdiction over this interlocutory appeal,
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we
affirm.

                         Background

    In 2006, Michael Ioane, Sr. (“Michael”) was under
investigation for criminal tax fraud and conspiracy. At the
time, Agent Noll was a Supervisory Special Agent for the
IRS Criminal Investigation Division, and she was asked to
assist in executing a search warrant as part of the
investigation regarding Michael. Prior to executing the
search warrant, agents learned that the Ioanes had registered
weapons and that these weapons likely would be at their
home. The search warrant authorized the IRS agents to
search the Ioane residence for, among other things, records,
computers, computer-related equipment, and computer
storage devices.

    On June 8, 2006, agents from the IRS Criminal
Investigation Division, including Agent Noll, arrived at the
Ioane residence to conduct the search. Only Michael and
Shelly were home at the time. The IRS agents informed
Michael and Shelly that they could stay on the premises if
they cooperated with the agents conducting the search.
However, the agents informed the Ioanes that if they chose
to leave the premises, they would not be allowed to return.
Both Ioanes stayed on the premises, and sat in the kitchen
while the agents conducted the search.




The district court granted summary judgment for Agent Noll on
plaintiffs’ excessive force claim, but denied Agent Noll summary
judgment on Shelly’s invasion of bodily privacy claim.
                       IOANE V. NOLL                         7

    At some point early in the search, Michael needed to use
the bathroom. A male agent escorted Michael to the
bathroom and conducted a quick search of the bathroom
area—opening a couple of drawers and looking in the
shower—before exiting and closing the door behind him.
The male officer stood outside the closed bathroom door
while Michael relieved himself.

    Then, about a half an hour into the search, Shelly told the
agents that she needed to use the bathroom. Agent Noll
escorted Shelly to the bathroom, and when she stepped
inside and started to close the door, Agent Noll told Shelly
that she had to come inside, too. Shelly asked Agent Noll to
wait outside, but Agent Noll resisted her plea. Agent Noll
told Shelly to remove her clothing so that she could make
sure Shelly did not have anything hidden on her person.
When Shelly objected, Agent Noll explained that she needed
to make sure Shelly did not hide or destroy anything, and
that this was standard procedure. Shelly, who was wearing a
long sundress, pulled up her dress so Agent Noll could see
that she was not hiding anything. According to Shelly, Agent
Noll made Shelly hold up her dress while she relieved
herself, using one hand to hold up her dress and the other to
pull her underwear down. Agent Noll faced Shelly while
Shelly used the bathroom, and when Shelly was finished,
Agent Noll escorted her back to the kitchen.

                          Analysis

    On appeal, Agent Noll claims that the district court erred
when it determined that she is not entitled to qualified
immunity from Shelly’s invasion of bodily privacy claim.
Agent Noll contends that her actions were objectively
reasonable, and therefore did not violate Shelly’s Fourth
Amendment rights. Further, Agent Noll argues that even if
her actions were not reasonable, the law was not so clearly
8                      IOANE V. NOLL

established in 2006 that a reasonable officer in her position
would have known that her actions were unlawful.

    We review a district court’s legal conclusion that an
official is not entitled to qualified immunity de novo. Eng v.
Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Our
interlocutory jurisdiction to review a denial of qualified
immunity is limited exclusively to questions of law, which
we review de novo.”).

    Qualified immunity balances “the need to hold public
officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). To balance these competing interests, we
perform a two-part test. Saucier v. Katz, 533 U.S. 194, 201
(2001); Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th
Cir. 2010). An officer is entitled to qualified immunity under
this test unless (1) the facts, construed in the light most
favorable to the plaintiff, demonstrate that the officer’s
conduct violated a constitutional right, and (2) the right was
clearly established at the time of the asserted violation. Karl
v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.
2012); Saucier, 533 U.S. at 201. If there is no constitutional
violation, the inquiry ends and the officer is entitled to
qualified immunity. Saucier, 533 U.S. at 201. On the other
hand, if we determine that the alleged facts establish a
constitutional violation, we proceed to part two of the test to
determine whether the right at issue was clearly established.
Id. While we have discretion to begin our analysis with
either part of the test, Pearson, 555 U.S. at 236, it is
nevertheless beneficial to begin with the first part of the test
because it “promotes the development of constitutional
precedent and is especially valuable with respect to
                       IOANE V. NOLL                         9

questions that do not frequently arise in cases in which a
qualified immunity defense is unavailable.” Plumhoff v.
Rickard, 572 U.S. 765, 774 (2014) (quoting Pearson,
555 U.S. at 236).

                      1. Bivens Claim

    Before reaching the issue of qualified immunity, the first
question we must address is whether Shelly may bring a
Bivens suit against Agent Noll. Hernandez v. Mesa, 137 S.
Ct. 2003, 2006 (2017) (whether Bivens applies “is
‘antecedent’ to the other questions presented”) (quoting
Wood v. Moss, 572 U.S. 744, 757 (2014)).

    In 1971, the Supreme Court recognized for the first time
an implied right of action against federal officers for
constitutional violations. Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In
Bivens, the Court held that plaintiff Webster Bivens was
entitled to sue federal agents for damages arising out of an
unlawful arrest and search, in violation of his Fourth
Amendment rights. Id. at 389–90.

    Following Bivens, however, the Supreme Court has
repeatedly refused to recognize an implied damages remedy
against federal officials. See Rodriguez v. Swartz, 899 F.3d
719, 737 (9th Cir. 2018) (collecting cases). Recently, the
Court “made clear that expanding the Bivens remedy is now
a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009)). “This [trend] is in accord with the Court’s
observation that it has ‘consistently refused to extend Bivens
to any new context or new category of defendants.’” Id.
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68
(2001)).
10                     IOANE V. NOLL

    In Abbasi, the Supreme Court laid out a two-step test for
determining when a Bivens claim should be recognized.
“[T]he first question a court must ask . . . is whether the
claim arises in a new Bivens context[.]” Id. at 1864. A case
presents a new context if it “is different in a meaningful way
from previous Bivens cases decided by th[e Supreme
Court].” Id. Abbasi outlined the following non-exhaustive
“list of differences that are meaningful enough to make a
given context a new one”:

       A case might differ in a meaningful way
       because of [1] the rank of the officers
       involved; [2] the constitutional right at issue;
       [3] the generality or specificity of the official
       action; [4] the extent of judicial guidance as
       to how an officer should respond to the
       problem or emergency to be confronted;
       [5] the statutory or other legal mandate under
       which the officer was operating; [6] the risk
       of disruptive intrusion by the Judiciary into
       the functioning of other branches; or [7] the
       presence of potential special factors that
       previous Bivens cases did not consider.

Id. at 1859–60.

    If the case presents a new Bivens context, then the court
proceeds to step two. At step two, a court may extend Bivens
in a new context only if two conditions are met. First, “the
plaintiff must not have any other adequate alternative
remedy.” Rodriguez, 899 F.3d at 738. Second, “there cannot
be any ‘special factors’ that lead [the court] to believe that
Congress, instead of the courts, should be the one to
authorize a suit for money damages.” Id. While the Supreme
Court has yet to define the term, “special factors,” it has
                          IOANE V. NOLL                             11

explained that “the inquiry must concentrate on whether the
Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed.” Abbasi, 137 S. Ct.
at 1857–58. Therefore, “to be a ‘special factor counselling
hesitation,’ a factor must cause a court to hesitate before
answering that question in the affirmative.” Id. at 1858.

    Here, a review of the Abbasi factors in the first step of
the Bivens analysis demonstrates that this case is similar to
Bivens and therefore does not present a “new context.” Both
cases concern an individual’s Fourth Amendment right to be
free from unreasonable searches and seizures. In Bivens,
federal agents allegedly searched Bivens’s home and his
person (by subjecting him to a visual strip search), without
probable cause or a warrant. See 403 U.S. at 389. Likewise,
Shelly’s claim here is that a federal agent conducted a
warrantless search of her person in violation of her Fourth
Amendment right to bodily privacy.

    There is no difference between the two cases with
respect to the rank of the officers involved, the generality or
specificity of the official action at issue, or the legal mandate
under which the officers were operating. 2 Further, the extent
of judicial guidance as to how Agent Noll should have
responded to the problem was well established. 3

    2
      The fact that Agent Noll searched the Ioane residence pursuant to
a lawful search warrant, unlike in Bivens where the agents were wholly
without any warrant, is of no significance. The only Fourth Amendment
claim at issue here is Shelly’s. With respect to Shelly, Agent Noll
conducted a warrantless search of her person.
    3
      This Abbasi factor—“the extent of judicial guidance as to how an
officer should respond to the problem or emergency to be confronted,”
Abbasi, 137 S. Ct. at 1860—is analogous to the question in a qualified
12                         IOANE V. NOLL

Recognizing a Bivens action in this closely analogous case
also does not result in any intrusion by the judiciary into the
functioning of other branches. See Bivens, 403 U.S. at 407
(Harlan, J., concurring) (“[T]he judiciary has a particular
responsibility to assure the vindication of constitutional
interests such as those embraced by the Fourth
Amendment.”). Nor does this case implicate any special
factors not considered previously that counsel against
recognizing a Bivens remedy.

    Rather, as was the case in Bivens, there is no alternative
remedy for a person in Shelly’s position—“it is damages or
nothing.” Id. at 410 (Harlan, J., concurring); cf. Abbasi,
137 S. Ct. at 1865 (“[T]he existence of alternative remedies
usually precludes a court from authorizing a Bivens
action.”). Accordingly, Shelly may proceed with her Bivens
suit against Agent Noll. 4

                         2. Reasonableness

    We now turn to the issue of qualified immunity and
begin with its first prong. While the Ninth Circuit never has
articulated a standard for when an officer’s intentional

immunity analysis of whether the law was “clearly established” at the
time of the officer’s actions such that a “reasonable official would
understand that what [she] is doing violates” a person’s constitutional
right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). While Judge
Bea disagrees with the majority that Shelly’s right to bodily privacy from
a same-sex strip search was clearly established at the time (as explained
in his separate concurrence), we all agree at a minimum that Shelly’s
right to be free from an unreasonable search was clearly established
under Ybarra v. Illinois, 444 U.S. 85 (1979).
     4
      Because we conclude that Shelly’s Bivens claim does not present
a “new context,” we need not consider the second part of the Bivens
analysis.
                       IOANE V. NOLL                        13

viewing of an individual’s naked body is constitutionally
permissible under the Fourth Amendment, “[t]he touchstone
of the Fourth Amendment is reasonableness.” Florida v.
Jimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United
States, 389 U.S. 347, 360 (1967)). Determining the
reasonableness of a particular search involves balancing the
degree to which the search intrudes upon an individual’s
privacy against the degree to which the search is needed to
further legitimate governmental interests. United States v.
Knights, 534 U.S. 112, 118–19 (2001). The required factors
to consider are: “(1) the scope of the particular intrusion,
(2) the manner in which it is conducted, (3) the justification
for initiating it, and (4) the place in which it is conducted.”
Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141
(9th Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 559
(1979) (internal quotation marks omitted)).

    Three cases from our Circuit inform the scope and
manner of the intrusion here. We first recognized the right
to bodily privacy in 1963. In York v. Story, we held that a
plaintiff had alleged sufficient facts to state an invasion of
bodily privacy claim under § 1983 when she alleged that
three police officers took and distributed nude photos of her
when she came to the station to report that she had been
assaulted. 324 F.2d 450, 452, 455–56 (9th Cir. 1963).
According to the allegations in the complaint, the officers
had insisted that it was necessary to take photos of the
plaintiff for her case, and directed her to undress in a room
of the police station despite the plaintiff’s objections and
insistence that she did not have bruises that required her to
be photographed in the nude. Id.at 452. Recognizing that the
“naked body” is the most “basic subject of privacy,” we
concluded that the woman had alleged a claim that the
officers’ actions violated her privacy rights under the
Fourteenth Amendment due process clause. Id. at 455–56.
14                     IOANE V. NOLL

    In 1985, we recognized that the right to bodily privacy
also applies to inmates. In Grummett v. Rushen, male prison
inmates filed a class action § 1983 lawsuit alleging that the
prison’s practice of allowing female correction officers to
view male inmates showering, disrobing, and using toilet
facilities violated their privacy rights. 779 F.2d 491, 492–93
(9th Cir. 1985). Although we held that the prisoners had a
right to privacy in their naked body, id. at 494, we concluded
that the officials had not violated the inmates’ privacy rights
because the officials’ view of the inmates was “restricted by
distance,” “casual in nature,” and justified by security needs,
id. at 495–96. We concluded that the prison authorities had
“devised the least intrusive means to serve the state’s
interests in prison security” and had not violated the inmates’
rights to bodily privacy. Id. at 494 (citing Wooley v.
Maynard, 430 U.S. 705, 716 (1976)).

    Finally, in 1992, we held that a parole officer violated a
female parolee’s right to bodily privacy when he entered the
bathroom stall while the parolee was providing a urine
sample. Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th
Cir. 1992). Distinguishing the facts in Grummett, we
determined that the parole officer’s view of the parolee was
“neither obscured nor distant,” and “far more degrading to
[the parolee] than the situation faced by the inmates in
Grummett.” Id. at 1416. Relying on Grummett and
recognizing that parolee rights are “even more extensive
than those of inmates,” we concluded that the parole officer
had violated the parolee’s bodily privacy rights. Id. at 1416.

    From York, Grummett, and Sepulveda, we conclude that
the scope of the intrusion into Shelly’s bodily privacy here
was significant. Agent Noll intruded on Shelly’s most basic
subject of privacy, her naked body. See York, 324 F.2d at
455. Moreover, unlike the prison inmates in Grummett and
                            IOANE V. NOLL                              15

the parolee in Sepulveda, Shelly’s privacy interests had not
been reduced. Just as in Sepulveda, where we recognized
that parolees have, “at a minimum, the same right to bodily
privacy as a prison inmate,” 967 F.2d at 1416, Shelly, who
had not been detained and was not herself the subject of a
search warrant, had more right to bodily privacy than a
parolee. See Samson v. California, 547 U.S. 843, 850 (2006)
(explaining that parolees are on the “continuum” of state-
imposed punishments with fewer expectations of privacy
than probationers because parole is more akin to
imprisonment). Therefore, the scope of Agent Noll’s
intrusion into Shelly’s bodily privacy right was significant
and weighs in favor of a determination of unreasonableness. 5




     5
       Although York, Grummett, and Sepulveda all involved searches by
members of the opposite sex, gender was not central to the conclusion of
whether the intrusion at issue was unreasonable. Indeed, York,
Grummett, and Sepulveda recognize that the naked body is the most
basic subject of privacy, and an arbitrary intrusion by any government
actor is unconstitutional. See York, 324 F.2d at 455 (“The desire to shield
one’s unclothed figure from view of strangers, and particularly strangers
of the opposite sex, is impelled by elementary self-respect and personal
dignity.”); see also Grummett, 779 F.2d at 495 (finding no violation even
where prison search conducted by member of the opposite sex);
Sepulveda, 967 F.2d at 1416 (emphasizing the up-close, unobscured
privacy intrusion rather than the fact that the parole officer and parolee
were of opposite genders); Byrd, 629 F.3d at 1150 (N.R. Smith, J.,
dissenting in part) (“In evaluating the scope of a search, the searching
officer’s gender is irrelevant.”). The concurrence takes a different view
regarding these cases, but it appears from these cases that gender is a
factor for evaluating the severity of the intrusion rather than the mark of
the intrusion itself. Indeed, as with any Fourth Amendment analysis, the
question is balancing the nature of the intrusion against the degree to
which the search is needed to further legitimate governmental interests.
Knights, 534 U.S. at 118–19. That Agent Noll and Shelly both are
16                         IOANE V. NOLL

    Additionally, unlike the casual, obscured, and restricted
manner of observation by the prison officials in Grummett,
Agent Noll stood facing Shelly in the Ioanes’ home
bathroom while Shelly relieved herself. Agent Noll’s
intrusion was like the parole officer’s intrusion in Sepulveda,
which we concluded was unreasonable. 6 See Sepulveda,
967 F.2d at 1415–16; see also York 324 F.2d at 455.
Therefore, the manner of Agent Noll’s intrusion weighs in
favor of concluding that the intrusion was unreasonable. See
Byrd, 629 F.3d at 1142–43 (weighing the Bell factors to
determine whether the intrusion was reasonable).

    Furthermore, none of the justifications Agent Noll
offered for initiating the search are borne out by the facts.
First, and most notably, the Ioanes were not detained during
execution of the search warrant. Despite the fact that the
Fourth Amendment permits limited detention of individuals
on the premises while officers execute a search warrant, see
Michigan v. Summers, 452 U.S. 692, 703–05 (1981), the
agents informed the Ioanes they were free to go. 7 Yet Agent

women does not change that Agent Noll violated Shelly’s privacy rights.
See York, 324 F.2d at 455.
     6
      Agent Noll contends that she does not recall escorting Shelly to the
bathroom, but that such a practice is “standard procedure.” However,
nowhere in the record is this procedure memorialized, and it appears the
other agents did not follow this “standard procedure” when Michael used
the bathroom.
     7
      In Summers, the Supreme Court held that it was reasonable, for
Fourth Amendment purposes, to detain individuals while officers
execute a lawful warrant on the premises. 452 U.S. at 703–05. This
limited detention is justified by preventing flight, loss of incriminating
evidence, and harm to occupants and officers. Id. at 702–03. However,
the Supreme Court has not held that these government interests authorize
the type of bodily privacy intrusion that took place here.
                       IOANE V. NOLL                        17

Noll contends that her intrusion into Shelly’s bodily privacy
was justified because of the inherent risk that Shelly might
destroy evidence. However, the fact that the Ioanes were not
detained belies Agent Noll’s contention that she and the
other agents were worried about Shelly destroying “floppy
disks, smart cards and PC cards . . . [hidden] on her person
under her dress.” If the agents legitimately feared that Shelly
might destroy evidence in the bathroom, they would not have
permitted Shelly to leave the premises where she could have
destroyed of the evidence elsewhere, and they would have
been constitutionally permitted to do so. See id.

    Second, Agent Noll argues that monitoring Shelly was
necessary to ensure that Shelly did not have anything
dangerous concealed in her clothing. Yet the search warrant
authorized only the search of the premises, not the
individuals on the premises. See Ybarra v. Illinois, 444 U.S.
85, 91–92 (1979) (rejecting the argument that individuals’
Fourth Amendment rights are abrogated simply by virtue of
the fact that they are on the premises where officers are
executing a lawful search warrant). Furthermore, Agent Noll
does not argue that she had a reasonable belief that Shelly
was armed except for asserting that the agents had found
other weapons on the premises. And, even if Agent Noll
possessed an objectively reasonable belief that Shelly was
armed and dangerous, this belief only would have justified a
pat-down for weapons, not the intrusion into bodily privacy
that occurred here. See id. at 92–93 (holding that an officer
must possess a reasonable belief that an individual is armed
and dangerous before conducting a weapons pat-down, even
if the individual is on the premises where officers are
executing a search warrant) (citing Adams v. Williams,
407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1, 21–27
(1968)). Indeed, the agents had monitored Shelly in the
kitchen for approximately 30 minutes before Shelly asked to
18                     IOANE V. NOLL

use the bathroom, and nowhere in the record does it reflect
that the officers conducted a pat-down search of Shelly or
Michael.

    Third, Agent Noll asserts that other safety concerns
justified monitoring Shelly while she used the bathroom
because the bathroom was not secure, and Shelly could have
gained access to the rest of the house through a second door
in the bathroom, putting officers or herself at risk. However,
by the time Shelly needed to use the bathroom, other agents
already had checked the bathroom for weapons.
Additionally, Agent Noll offers no explanation why
watching Shelly use the bathroom was the only way to abate
the risk that Shelly might flee, given that other officers might
have been recruited to stand outside the bathroom’s second
door. See Grummett, 779 F.3d at 494 (concluding that the
prison had not violated inmates’ rights when the prison had
devised the least intrusive means to serve the state security
interests). Indeed, the agents permitted Michael, who was
the subject of the investigation, to use the bathroom while a
male agent stood outside the door. In sum, the justifications
Agent Noll offers for initiating the search weigh in favor of
a determination of unreasonableness.

    Finally, the search was conducted in the Ioane’s home
bathroom. The law recognizes heightened privacy interests
in the home, which arguably makes this intrusion more
egregious, especially when Shelly herself was not the subject
of the search. See Kyllo v. United States, 533 U.S. 27, 31
(2001). The place of the search, therefore, also weighs in
favor of unreasonableness.

    Weighing the scope, manner, justification, and place of
the search, a reasonable jury could conclude that Agent
Noll’s actions were unreasonable and violated Shelly’s
Fourth Amendment rights. Agent Noll’s general interests in
                       IOANE V. NOLL                         19

preventing destruction of evidence and promoting officer
safety did not justify the scope or manner of the intrusion
into Shelly’s most basic subject of privacy, her naked body.
See York, 324 F.2d at 455; see also Byrd, 629 F.3d at 1141.
We therefore affirm the district court on this issue.

                   3. Clearly Established

     The second part of the qualified immunity test requires
us to determine whether, at the time of Agent Noll’s actions
in June 2006, the law was clearly established. To be clearly
established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what
[she] is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). That is, the right must be
established “in a more particularized, and hence more
relevant, sense[.]” Id.; Dunn v. Castro, 621 F.3d 1196, 1201
(9th Cir. 2010) (“[T]he right allegedly violated must be
defined at the appropriate level of specificity before a court
can determine if it was clearly established.”) (quoting Wilson
v. Layne, 526 U.S. 603, 615 (1999)). This high standard is
intended to give officers breathing room “to make
reasonable but mistaken judgments about open legal
questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
“[I]t protects all but the plainly incompetent or those who
knowingly violate the law.” Id. (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). While the Supreme Court has
repeatedly admonished this court not to define clearly
established law at a high level of generality, see, e.g., City &
Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015), we
need not identify a prior identical action to conclude that the
right is clearly established, Anderson, 483 U.S. at 640. We
first look to binding precedent to determine whether a law
was clearly established. Chappell v. Mandeville, 706 F.3d
1052, 1056 (9th Cir. 2013).
20                     IOANE V. NOLL

    By 2006, much of our Circuit’s precedent regarding the
right to bodily privacy had been established. First, from
York, it was clearly established that an individual’s naked
body is the most basic subject of privacy. 324 F.2d at 455.
Second, from Grummett, it was clearly established that
casual, restricted, and obscured viewing of a prison inmate’s
naked body is constitutionally permitted if it is justified by
legitimate government interests such as prison security
needs. 779 F.2d at 492, 494–95. Finally, from Sepulveda, it
was clearly established that a male parole officer’s
intentional viewing of a female parolee providing a urine
sample, over the parolee’s objection, is unconstitutional.
967 F.2d at 1416.

    Additionally, it was clearly established by 2006 that an
individual’s Fourth Amendment right against unreasonable
searches is not abrogated by virtue of her presence at the
execution of a search warrant. See Ybarra, 444 U.S. at 91–
93. In Ybarra, the Supreme Court held that an officer
executing a search warrant on a premises must possess a
reasonable belief that an individual is armed and dangerous
before conducting a weapons pat-down of the individual. Id.

    Taken together, the holdings from York, Grummett,
Sepulveda, and Ybarra put the unlawfulness of Agent Noll’s
conduct beyond debate. See al-Kidd, 563 U.S. at 741 (“We
do not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate”); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.
2000) (“[Cl]osely analogous preexisting case law is not
required to show that a right was clearly established.”).

   First, unlike the inmates in Grummett or the parolee in
Sepulveda, Shelly’s privacy interests had not been reduced.
The agents were executing a search warrant at Shelly’s
house, but Shelly had not been detained. Furthermore,
                       IOANE V. NOLL                       21

Michael, and not Shelly, was the subject of the investigation.
This makes the intrusion here even more significant than in
Grummett or Sepulveda.

    Second, it is clearly established that such a significant
intrusion as occurred here never can be permitted in the
absence of legitimate government interests, which here,
plainly were lacking. See Grummett, 779 F.2d at 496;
Knights, 534 U.S. at 118–19 (“[T]he reasonableness of a
search is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.”) (internal
quotation marks and citation omitted).

     Finally, if the Constitution prohibits an officer from
conducting a weapons pat-down of an individual during
execution of a search warrant in the absence of a reasonable
belief that the individual is armed and dangerous, the
intrusion here, for which Agent Noll has articulated no
reasonable belief that Shelly was armed and dangerous,
clearly was unconstitutional. See Ybarra, 444 U.S. at 91–93.
And, even if Agent Noll had possessed a reasonable and
articulable belief that Shelly was armed and dangerous, it is
beyond debate that Agent Noll initially only would have
been constitutionally permitted to conduct a pat-down search
and not watch Shelly use the bathroom. See id. at 92–93
(citing Terry, 392 U.S. at 21–27). Accordingly, Agent Noll’s
decision to monitor Shelly while Shelly used the restroom,
when Agent Noll clearly was not authorized to conduct a
weapons pat down, arguably qualifies as “plainly
incompetent.” See al-Kidd, 563 U.S. at 743.

   In sum, a reasonable officer in Agent Noll’s position
would have known that such a significant intrusion into
bodily privacy, in the absence of legitimate government
22                     IOANE V. NOLL

justification, is unlawful. Hope v. Pelzer, 536 U.S. 730, 739–
41 (2002) (“[O]fficials can still be on notice that their
conduct violates established law even in novel factual
circumstances.”). We therefore conclude that Agent Noll is
not entitled to qualified immunity.

     AFFIRMED.



BEA, Circuit Judge, concurring in part and concurring in the
judgment:

   I agree with the majority that this case does not extend
Bivens to a new context and that the district court did not err
in denying Agent Noll’s motion for summary judgment
regarding Shelly Ioane’s claim that Agent Noll violated
Shelly’s clearly established constitutional rights. However,
because I disagree with the majority’s holding that Agent
Noll’s actions violated Shelly’s clearly established right to
bodily privacy, I write separately.

                               I

                              A

    As the majority correctly notes, we engage in a two-part
test when determining whether a government agent is
entitled to qualified immunity. Saucier v. Katz, 533 U.S.
194, 201 (2001). An officer is entitled to qualified immunity
under this test unless: (1) the facts, construed in the light
most favorable to the plaintiff, demonstrate that the officer’s
conduct violated a constitutional right, and (2) that right was
clearly established at the time of the asserted violation. Id.
Because this case reaches us on a denial of summary
judgment, we must determine whether Agent Noll “would
                       IOANE V. NOLL                        23

be entitled to qualified immunity as a matter of law assuming
all factual disputes were resolved in [Shelly’s] favor.” Eng
v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009).

    To be clearly established, “[t]he contours of the right
must be sufficiently clear that a reasonable official would
understand that what [she] is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). That is,
the right must be established “in a more particularized, and
hence more relevant, sense.” Id.; Dunn v. Castro, 621 F.3d
1196, 1201 (9th Cir. 2010) (“[T]he right allegedly violated
must be defined at the appropriate level of specificity before
a court can determine if it was clearly established.” (internal
quotation marks omitted)).

    This particularized requirement does not mean that there
must be a prior case with identical facts—an officer can still
be on notice that her conduct “violates established law even
in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
730, 739–41 (2002). “[B]ut existing precedent must have
placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In
other words, immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015)). Additionally, even if
an officer violates a clearly established right, the officer is
entitled to qualified immunity if the officer’s “mistake as to
what the law requires is reasonable.” Saucier, 533 U.S. at
205.

                              B

    Here, the majority concludes that Agent Noll was not
entitled to qualified immunity as a matter of law, in part
because Agent Noll violated Shelly’s clearly established
24                      IOANE V. NOLL

Fourth Amendment right to bodily privacy when Agent Noll
searched Shelly and viewed her naked body during the
course of executing a search warrant at the Ioanes’ residence.
To reach that conclusion, it is necessary for the majority to
hold that a female law enforcement officer violates a clearly
established right to bodily privacy when she unreasonably
views the naked body of a female suspect.

    The majority cites three of our prior cases regarding
bodily privacy to support the existence of such a clearly
established right. But the cases cited by the majority are
distinguishable from the instant case in significant ways.
Most problematically, none of the cases cited by the majority
state that there is a constitutional right to bodily privacy that
is violated by same-sex observation.

    For instance, in York v. Story, 324 F.2d 450, 451–53 (9th
Cir. 1963), where we first announced the right to bodily
privacy, a female victim was brought to the police station
after an altercation. Male officers told her that they needed
to photograph her naked body to preserve evidence of
bruising. Id. The woman repeatedly objected, stated that
she did not want to be photographed, and contended that
there was no evidence of bruising to document. Id. The
officers photographed the woman anyway and distributed
the photos throughout the department. Id. We held that the
officers’ actions violated the woman’s right to bodily
privacy. Id.

    But York does not support a clearly established right that
was violated in this case for a number of reasons. First, the
privacy violation in York was much more severe because the
photographs were disseminated to other officers. Here, the
observation was in a one-on-one setting. Second, even the
York court recognized that the fact that the officers were
male and the victim was female was significant, stating: “We
                       IOANE V. NOLL                        25

cannot conceive of a more basic subject of privacy than the
naked body. The desire to shield one’s unclothed figured
from view of strangers, and particularly strangers of the
opposite sex, is impelled by elementary self-respect and
personal dignity.” Id. at 455 (emphasis added).

    Next, the majority cites Grummett v. Rushen, 779 F.2d
491 (9th Cir. 1985). In Grummett, male inmates sued the
department of corrections for allowing female guards to
observe them in the showers and while using the restroom,
claiming a violation of their right to privacy. Id. at 492–93.
This court held that there was no violation of the right to
bodily privacy because the inmates had a reduced privacy
interest, the female guards observed the inmates naked only
from a distance, and the department’s policies were, on the
whole, reasonable. Id. at 494–96.

    Again, Grummett does not support a clearly established
right that was violated in this case. First, the plaintiffs in
Grummett exclusively challenged cross-sex observations—
the plaintiffs did not even attempt to argue that male guards’
observations of naked male inmates violated the inmates’
right to bodily privacy. As a result, this court’s analysis was
entirely framed in terms of whether cross-sex observations
and searches violated the right to bodily privacy. Second,
the Grummett court found no constitutional violation even
though the observations were cross-sex.               Although
Grummett stands for the proposition that some right to
bodily privacy exists, it is difficult to see how Grummett
could have created a clearly established constitutional right
to be free from same-sex observation.

    Finally, the majority cites Sepulveda v. Ramirez,
967 F.2d 1413, 1416 (9th Cir. 1992). In Sepulveda, we held
that a male probation officer violated a female probationer’s
right to bodily privacy when the male probation officer
26                    IOANE V. NOLL

observed the female probationer urinating in a bathroom stall
during a urinalysis test. 967 F.2d at 1415. This is, without
doubt, the most factually analogous case cited by the
majority.

    And yet, several factors indicate that Agent Noll’s
conduct was not clearly proscribed by this court’s opinion in
Sepulveda. First, and most obviously, our ruling in
Sepulveda hinged on the fact that the probation officer was
of the opposite sex, and all of the cases the Sepulveda court
cited involved observation by members of the opposite sex.
Id. Indeed, the Sepulveda court itself cited York for the
proposition that “[t]he desire to shield one’s unclothed
figured from view of strangers, and particularly strangers of
the opposite sex, is impelled by elementary self-respect and
personal dignity.” Id. at 1415 n.5 (quoting York, 324 F.2d
at 455). Thus, it is unclear how Sepulveda can be read to
create a clearly established constitutional right to be free
from naked observation by members of the same sex.

    Second, in concluding that the probation officer’s
conduct was not “reasonable,” the Court relied on the fact
that his conduct violated department of corrections policies.
Id. at 1416. Here, by contrast, Agent Noll’s uncontradicted
declaration establishes that her conduct comported with IRS
policy. Again, at a minimum, this fact provides a basis to
conclude that Agent Noll’s mistake as to whether she was
violating the right established by Sepulveda was reasonable.

    Finally, Sepulveda did not occur in the context of the
execution of a search warrant. The majority argues that this
means Shelly likely had broader rights than the probationer
in Sepulveda. But that argument ignores the factual context
relevant to determining whether Sepulveda sufficiently
defined the contours of the right at issue. In particular,
Sepulveda contains no discussion regarding how to weigh
                       IOANE V. NOLL                        27

the right to bodily privacy against the interests of officer
safety or the preservation of evidence.

    The majority dismisses many of these concerns without
serious examination. Most notably, the majority asserts (in
a footnote) that, although every bodily privacy case this
circuit has decided involved cross-sex observation, “gender
was not central” to the analysis in any of those cases. See
Maj. Op. at 15 n.5. Thus, the majority concludes, “[the fact
t]hat Agent Noll and Shelly both are women does not change
that Agent Noll violated Shelly’s privacy rights.” See id.

   Gender is not central?

    It is impossible to square this conclusion with our
precedent. Every bodily privacy case cited by the majority
involved cross-sex observation and every case noted that the
cross-sex nature of the observation was a significant part of
the court’s analysis. No case cited by the majority discusses
whether same-sex observation is subject to the same sort of
analysis or scrutiny. In fact, language from York and
Sepulveda—and the result from Grummett—strongly
suggest that same-sex observations are not subject to the
same sort of scrutiny as cross-sex observations.

    The majority is likely correct that Agent Noll’s actions
were unreasonable, and Agent Noll may have violated
Shelly’s constitutional right to bodily privacy during the
search. But the existence of a constitutional violation alone
is insufficient to deny qualified immunity—we must find
that the right at issue was “clearly established.” Our
precedent at the time of the alleged violation in this case did
not put the issue of whether same-sex observation violates
the right to bodily privacy “beyond debate.” See al-Kidd,
563 U.S. at 741.
28                          IOANE V. NOLL

    The majority could have used this case to clarify the law
regarding the right to bodily privacy and announced that the
right applied in both same-sex and cross-sex situations alike.
Perhaps that is the correct result. But the majority cannot, in
one fell swoop, both announce for the first time that the
scope of the bodily privacy right includes same-sex
observations and, at the same time, hold that the right was
clearly established at the time of the violation. 1

                                    II

    Nonetheless, I concur in the majority’s ultimate
conclusion that the district court did not err in denying Agent
Noll’s motion for summary judgment. Drawing all factual
inferences in favor of Shelly, as we must, Agent Noll’s
actions violated Shelly’s Fourth Amendment rights under
the Supreme Court’s decision in Ybarra v. Illinois, 444 U.S.
85 (1979).

    In Ybarra, police received a tip that a bartender was
likely to be dealing heroin at his bar on a particular night. Id.
at 87–90. The police used that tip to obtain a search warrant
for the bar and the bartender. Id. When the police arrived at
the bar, they announced that they were executing a search
warrant and then stated that they were going to perform a
weapons pat-down on all of the patrons of the bar who were


     1
      The majority is defining the right of bodily privacy at a higher level
of generality—same and cross-sex observation of nudity—than the level
of generality here involved: same-sex observation. This is precisely the
sort of judicial decision-making for which the Supreme Court has
repeatedly chastised us. See Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (“This Court has ‘repeatedly told courts—and the Ninth Circuit
in particular—not to define clearly established law at a high level of
generality.’” (internal quotation marks omitted)).
                       IOANE V. NOLL                       29

present. Id. During that weapons pat-down, an officer found
heroin on a patron of the bar. Id.

    During the ensuing criminal case, the patron moved to
suppress the evidence found in the pat-down search, arguing
that the officer had no probable cause to search him. Id. The
state courts held that the search was permissible because a
state statute authorized officers executing a search warrant
to detain and search anyone at the premises. Id.

    The Supreme Court reversed, holding that the search was
unconstitutional. The Supreme Court held that the officers
needed individualized probable cause as to the patron in
order to conduct an evidence search of his person and that
the search warrant for the premises combined with the
patron’s presence at the premises was insufficient. Id. at 90–
92. Additionally, the Court held that any weapons frisk
needed to be supported by a “reasonable belief” that the
patron was armed and dangerous. Id. at 92–94. Finally, the
Court rejected the state’s argument that such searches were
necessary as part of drug enforcement because of the ease
with which evidence of a drug crime could be concealed,
passed from person to person, and disposed of. Id. at 94–96.

    In short, Ybarra stands for the proposition that a search
warrant for a particular premises does not give the officers
executing the warrant the right to search individuals who are
present, but who the officers do not have independent
probable cause to search. Here, Shelly was not the subject
of the investigation and the search warrant did not authorize
a search of her person, only of the premises. As a result,
under Ybarra, any search of Shelly needed to be supported
by independent probable cause or, in the case of a weapons
frisk, a reasonable belief that she was armed and dangerous.
30                    IOANE V. NOLL

    Neither of those conditions was met in this case. Agent
Noll had no individualized probable cause to search Shelly.
Consequently, there was no basis to conduct an evidence
search of Shelly’s person. Additionally, Agent Noll likely
lacked any reasonable belief that Shelly was armed and
dangerous. Although Agent Noll knew there were firearms
in the house, those firearms did not belong to Shelly and
there was no other basis on which to conclude that Shelly
was armed and dangerous. Regardless, even if Agent Noll
had a reasonable basis to believe Shelly was armed and
dangerous, her actions in this case plainly exceeded the
limits of the sort of weapons pat-down authorized by the
Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).

    As a result, I would hold that Agent Noll’s actions
violated Shelly’s Fourth Amendment rights as clearly
established in Ybarra.

                             III

    In conclusion, Agent Noll’s actions did not violate
Shelly’s clearly established right to bodily privacy.
However, drawing factual inferences in Shelly’s favor,
Agent Noll’s actions in this case likely violated Shelly’s
constitutional rights under Ybarra. On that basis, I would
hold that the district court was correct to deny Agent Noll’s
motion for summary judgment. As a result, I CONCUR in
the judgment of the majority opinion.
