CONN v. GABBERT


Syllabus

CONN v. GABBERT ( No. 97-1802 )
131 F. 3d 793, reversed.

CONN et al. v. GABBERT

certiorari to the united states court of appeals for the ninth circuit


No. 97–1802. Argued February 23, 1999—Decided April 5, 1999

Petitioners Conn and Najera, prosecutors in the “Menendez Brothers” case on retrial, learned that Lyle Menendez had written a letter to Traci Baker, in which he may have instructed her to testify falsely at the first trial. Baker was subpoenaed to testify before a grand jury and to produce any correspondence that she had received from Menendez. She later responded that she had given Menendez’s letters to her attorney, respondent Gabbert. When Baker appeared to testify before the grand jury, accompanied by Gabbert, Conn directed police to secure a warrant to search Gabbert for the letter. At the same time that Gabbert was being searched, Najera called Baker before the grand jury for questioning. Gabbert brought suit against the prosecutors under 42 U. S. C. §1983, contending, inter alia, that his Fourteenth Amendment right to practice his profession without unreasonable government interference was violated when the prosecutors executed a search warrant at the same time his client was testifying before the grand jury. The Federal District Court granted petitioners summary judgment, but the Ninth Circuit reversed in part, holding that Gabbert had a right to practice his profession without undue and unreasonable government interference, and that because the right was clearly established, petitioners were not entitled to qualified immunity.

Held:<unicode value="8194"> A prosecutor does not violate an attorney’s Fourteenth Amendment right to practice his profession by executing a search warrant while the attorney’s client is testifying before a grand jury. To prevail in a §1983 action for civil damages from a government official performing discretionary functions, the qualified immunity defense requires that the official be shown to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U. S. 800. There is no support in this Court’s cases for the Ninth Circuit’s conclusion that the prosecutors’ actions in this case deprived Gabbert of a liberty interest in practicing law. See Board of Regents of State Colleges v. Roth, 408 U. S. 564; Meyer v. Nebraska, 262 U. S. 390. The cases relied upon by the Ninth Circuit or suggested by Gabbert all deal with a complete prohibition of the right to engage in a calling, and not the sort of brief interruption as a result of legal process which occurred here. See, e.g., Dent v. West Virginia, 129 U. S. 114. Gabbert’s argument that the search’s improper timing interfered with his client’s right to have him outside the grand jury room and available to consult with her is unavailing, since a grand jury witness has no constitutional right to have counsel present during the proceeding, and none of this Court’s decisions has held that such a witness has a right to have her attorney present outside the jury room. This Court need not decide whether such a right exists, because Gabbert had no standing to raise the alleged infringement of his client’s rights. Although he does have standing to complain of the allegedly unreasonable timing of the search warrant’s execution to prevent him from advising his client, challenges to the reasonableness of the execution of a search warrant must be assessed under the Fourth Amendment, not the Fourteenth, see Graham v. Connor, 490 U. S. 386. Pp. 4–7.

131 F. 3d 793, reversed.

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in the judgment.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.


TOP

Concurrence

DAVID CONN and CAROL NAJERA, PETITIONERS v.
PAUL L. GABBERT

on writ of certiorari to the united states court of appeals for the ninth circuit


[April 5, 1999]

Justice Stevens , concurring in the judgment.

Respondent claims that petitioners violated his constitutional right to practice his profession by unreasonably timing the service and execution of a warrant to search his papers. There is, however, no evidence that respondent’s income, reputation, clientele, or professional qualifications were adversely affected by the search. Nor is there any real evidence or allegation that respondent’s client was substantially prejudiced by what occurred. See App. to Pet. for Cert. B–17. Accordingly, despite the shabby character of petitioners’ conduct, I agree with the Court that it did not deprive respondent of liberty or property in violation of the Fourteenth Amendment.

My conclusion that the judgment of the Court of Appeals must be reversed is reached independently of the question whether petitioners may have violated the Fourth Amendment because their method of conducting the search was arguably unreasonable—an issue not squarely presented and argued by petitioners in this Court. If their conduct had violated the Due Process Clause of the Fourteenth Amendment, there is no reason why such a violation would cease to exist just because they also violated some other constitutional provision. Thus the suggestion in the penultimate paragraph of the Court’s opinion—that the possible existence of a second source of constitutional protection provides a sufficient reason for reversal, ante , at 6–7—is quite unpersuasive. Indeed, if that ground for decision were valid, most of the reasoning in the preceding pages of the Court’s opinion would be unnecessary to the decision.