THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Thursday, October 24, 1996 TAG: 9610240318
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 99 lines
A federal judge Wednesday refused to throw out a civil rights lawsuit that accuses the Internal Revenue Service of conducting illegal raids against the Jewish Mother restaurants in 1994.
The judge turned down a motion from the IRS to dismiss the suit. He deferred ruling on a similar motion from the state Alcoholic Beverage Control Department, but hinted he probably will deny that request, too.
In a 90-minute hearing, U.S. District Judge J. Calvitt Clarke Jr. expressed concern about raids on two restaurants and two homes in April 1994. Clarke seemed concerned about charges that IRS and ABC agents went too far in the raids - among other things, that they refused to let one man call a lawyer while his house was being torn apart, that they insisted on watching teen-age girls get dressed and that they did not return everything seized.
A lawsuit against the IRS and ABC agents seeks $10 million in compensatory damages, plus $10 million in punitive damages. It was filed in March by restaurant co-owners John Colaprete and Ted Bonk and former manager Scotty Miller and his family.
The raids were conducted by IRS and ABC agents at restaurants in Norfolk and Virginia Beach and at the homes of Colaprete and Miller. The Norfolk restaurant is now defunct.
The IRS expected to find guns, drugs and business records showing tax evasion and money laundering. Agents seized a truckload of evidence - books, cash registers, receipts, price lists, computers, calendars, Rolodexes, telephones - even a car license plate. Yet no criminal charges were ever filed.
Instead, the agents returned everything five months later with no apology, just a statement that the case was closed.
The lawsuit accuses the IRS and ABC of two things:
Obtaining a search warrant based on faulty information from a disgruntled ex-employee, a bookkeeper who was fired for stealing money. The woman, Deborah A. Shofner, later pleaded guilty to embezzling $30,000 from the restaurant. The lawsuit says the IRS and ABC should have known Shofner was unreliable.
Using excessive force during the searches. About 15 agents with guns burst into Miller's house while his 15-year-old daughter was having a slumber party. They allegedly rousted Miller from the shower at gunpoint and refused to let him call his lawyer while they searched the house.
Also, about 20 agents with guns and dogs allegedly burst into the Jewish Mother's Oceanfront restaurant and ordered patrons out, yanking forks from the hands of those who dawdled, and lining up others and asking for identification.
These facts and others ``raise substantial questions about the reasonableness of the force that was used,'' said the Jewish Mothers' attorney, Robert J. Haddad.
The IRS and ABC say they had no way of knowing the informant was lying, that search warrants are often based on information from informants with checkered pasts.
The agencies also deny the raids were excessive. They say they needed many heavily armed agents because they expected to find guns and drugs and did not know what resistance they might encounter.
Wednesday, Judge Clarke questioned several aspects of the raids.
For example, the lawsuit says three girls, ages 14 to 15, were getting dressed in a bedroom of Miller's house when two male agents entered the room with guns drawn. One girl pleaded with the agents to leave, but instead one of the agents stuck his foot in the door and watched as the girls dressed.
``Isn't that a little bit beyond acceptable bounds?'' Clarke asked.
No, said IRS attorney Jonathan Jackel. ``Criminals are not exclusively adults . . . It may have been inconvenient, it may have been a bad idea, . . . but that doesn't make it unconstitutional.''
``You apparently don't have teen-age daughters,'' Clarke said.
``No, your Honor,'' Jackel answered, ``but I have a wife.''
In another exchange, Clarke asked if it wasn't improper to refuse to let Miller call his lawyer while his house was being ``torn up.''
No, said ABC lawyer J. Patrick Griffin - the agents had to secure the house first. ``My understanding is that's fairly standard police procedure,'' Griffin said.
Clarke said he also was worried that not all seized property was returned. For example, Colaprete says the agents took an Elgin watch he got from his father but never returned it.
Jackel said IRS agents never had the watch and that even if they did, it was irrelevant.
That comment seemed to annoy Clarke, who replied, ``I think it is relevant.''
Clarke also questioned the raid on Colaprete's house. The lawsuit says no one was home, that agents burst in, wrecked the house, took what they wanted, left the front door open and let Colaprete's dogs escape.
``There may well be a constitutional violation,'' Clarke said.
The judge said he wants both sides to develop more facts on the case so he can rule on these issues.
He deferred one decision: whether state ABC agents are immune to a federal lawsuit. Clarke said he was concerned because state agents used the federal court to get their search warrant, then argued that they could not be sued there.
The case is set for trial in April. ILLUSTRATION: Graphic
What Happened
The Co-owners say:
The IRS says:
[For complete copy, see microfilm]
KEYWORDS: CIVIL RIGHTS LAWSUIT THE JEWISH MOTHER RESTAURANT
IRS ABC RAID by CNB