Reply Brief — Conn v. Gabbert

No. 97-1802

In The

Supreme Court of the United States

October Term, 1998

+

DAVID CONN and CAROL NAJERA,

Petitioners,

vs.

PAUL L. GABBERT,

Respondent.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

+

PETITIONERS’ REPLY BRIEF ON THE MERITS

+

Kevin C. Brazite *

Lioyp W. PeLLMAN

County Counsel

DONOVAN MAIN

Senior Assistant County Counsel

Louis V. AGUILAR

Assistant County Counsel

Los Angeles County Counsel’s Office

648 Kenneth Hahn Hall of

Administration

500 West Temple Street

Los Angeles, California 90012

(213) 974-1943

Attorneys for Petitioners

"Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

FTG i a abn Sais ch Seas LeOd cahe nee l

I. PETITIONERS’ SUMMARY OF THE EVIDENCE

IS AN ACCURATE REFLECTION OF THE

EE bi Gs SAKA NEES See Mod bios eee’ ne coe l

Il. RESPONDENT’S BRIEF ON THE MERITS CON-

TAINS FACTUAL INACCURACIES THAT ARE

NOT SUPPORTED BY THE RECORD.......... 4

Ill. PETITIONERS DID NOT CAUSE RESPON-

DENT’S FOURTEENTH AMENDMENT RIGHTS

TO BE VIOLATED WHEN HE WAS SEARCHED

WHILE HIS CLIENT WAS TESTIFYING

BEFORE THE GRAND JURY.................. 6

A. The Petitioners Did Not Prevent Respondent From

Communicating With His Client .............. 8

B. Respondent Cannot Base His Fourteenth

Amendment Claim Upon An Alleged Violation

Of His First Amendment Rights Because He

Failed To Raise A First Amendment Claim

RN SGSS octh lL ephatecan beds abewses coe 10

C. Petitioners Did Not Engage In Conscience Shock-

ing Or Deliberate Indifferent Conduct.......... 1]

IV. RESPONDENT’S CHALLENGE TO THE VAL-

IDITY OF THE WARRANT IS BEYOND THE

SCOPE OF THE ORDER GRANTING CER-

Pas Sick dns bs enh cen eee dads sewed deduce ve 15

V. RESPONDENT DID NOT HAVE A CLEARLY

ESTABLISHED FOURTEENTH AMENDMENT

RIGHT THAT PREVENTED HIM FROM BEING

SEARCHED AT THE TIME HIS CLIENT TESTI-

FIED BEFORE THE GRAND JURY............. 16

STRESS Wcay bac Peuesue i wecces c's voce’ 20

TABLE OF AUTHORITIES

Page

Cases

Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598

(19FQ) ...cvvivccanecdoceebec de hewMas Antes anIE wae +

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034

(ho) Ree rs re 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

$.Ce. 2505 (1966) ...<.inus cee coves ce enue 2

Bernard v. United Township High School Dist. No.

30, S$ F.3d 1090 (Feb Cie... IDRSD.< 0c seane saseueananes 7

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Cr-

2548 (EDBE). «cic duce cess cass Se ee ee eee 2

City of Oklahoma City v. Tuttle, 471 U.S. 808, 105

S.Ce. 2427 (1968) 2.2.5. eC ieee eee eee 13

Collins v. Harker Heights, Texas, 503 U.S. 115, 112

S.Ce. 1068 €199Z) .. . vic cutee tv awa swe eee 12

County of Sacramento v. Lewis, 523 U.S. __, 118

S$.Ce. 1706 (ISSR) . . icncccccueseeeeenee 11, 12, 14

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662

(1966) . ... ..cclccnce cue so 0,d0 bi ewes ORR gene 14

Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984). .17, 18

DeShaney v. Winnebago Soc. Serv., 489 U.S. 189,

109 S.Cx. 998 CESSS) so ede ea eee eee eee 11

Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720

(19TT) . . oc vees sees’ sveens este tbe been een 1]

TABLE OF AUTHORITIES — Continued

Page

Elder v. Holloway, 510 U.S. 510, 114 S.Ct. 1019

testehenticdee MM Cb EOL od eohekslincce cece 18

Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970

ae i chal dina Jadnivey deas ov ob' 54s 13, 14

Federal Deposit Ins. Corp. v. Henderson, 940 F.2d

ED well casekdosdbblicveecesocceses 7

First National Bank of Arizona v. Cities Service Co.,

Se ee Ge MR, BOOS CEDOOD ccc cccccccccceces 2

Fried v. Hinson, 78 F.3d 688 (D.C. Cir. 1996)......... 13

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865

DPPPCAMM Cel h lode gediouavobedsl bes cdcvedeccoos 11

Granfinanciers v. Nordberg, 492 U.S. 33, 109 S.Ct.

ES IRS a Se a 11

Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400

Tere eCeC eh. UUs 66 edu ndegbuans occe eee 7, 16

Jean v. Collins, 155 F.3d 701 (4th Cir. 1998)....... 17, 18

Keker v. Procunier, 398 F.Supp. 756 (E.D. Cal. 1975)... 18, 19

Lassiter v. Alabama A & M Univ., 28 F.3d 1146 (11th

techie dibs odeeaw t's odevedvveseve 17

Matsushita Elec. Indus. Co. Ltd. v. Epstein, 516 U.S.

rr i ose el ccc evcesasbeccceces 15

Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135

i et east slo 5ebeeéécehegcecscacece 12, 13

O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct.

Mn deca duenb eee ed oc veccécecépon 20

iv

TABLE OF AUTHORITIES — Continued

Page

Pennsylvania Dept. Of Corrections v. Yeskey, __

U.S. ..... 886 BAL Sie Seeders cekul cowdeseaee’ 11

Piecknick v. Com. of Pennsylvania, 36 F.3d 1250 (3rd

Cie; 99PE.. .<ccvnc cok tdndae dees tatiana 7

Regents of the University of California v. Doe, 519

OB. 425, 057 SLR. TE CHW coo sdasblc cus bcautediec 10

Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439

COGDED . 0 onic veannévenmn> dbs setsenene teats 16, 18, 19

Russell v. Southard, 12 How. 139 (1851)............... +

Turner v. Safley, 482 U.S. 78 (1987)................4.. 20

United States v. Lainer, 520 U.S. 259, 117 S.Ct. 1219

(UDG EE o odacnbcctpcwvaknsces cause eaesanenanaeen 17, 18

United States v. Mandujano, 425 U.S. 564, 96 S.Ct.

CREE CESEED ces evkidecievasteeie ns aaeeeewe 17, 19

United States v. R. Enterprises, Inc., 498 U.S. 292,

OTE CEE, FO COMED 6 co ncdbivcntchnss cusihvessactin 19

United States v. Williams, 504 U.S. 36, 112 S.Ct.

OPE CORES occas eid eed 0bbiead tcennkeaineeteas 7

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197 (1975). .6, 12

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct.

REGS CHRIS « c'nd hanees bidd denkedetensieds cidade 16, 19

Wedges/Ledges of California, Inc. v. City of Phoenix,

Oe Bt fF AG OY BR NE eas ee 7

Yee v. City of Escondido, Cal., 503 U.S. 519, 112

DAR. : 92SEC Nc oddc dv datbs inte t wateie deetiens 10

Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452

COGEIDD .’s'v vv'n c's ossb- o'enaeet bale ss 0b as dauueeaeerene 11

Page

ConstiruTion, STATUTES AND REGULATIONS

Tt DAN TEA aie Bis Bask Re emeusslti 10, 11

ss cinta nab cckdebnne> cade ehio 11, 15, 16

Pe I sb iS wwC sees cS eRe dll nk inde wks oe 1, 14

a ie oe al a ee ee Le 7

i Cn. ¢ is, wueew sound ebasedesenne passim

i Mal. ddtllcduhans sda adieudhicedhahtac tpieb bens 2

Ig

1

ARGUMENT

I. PETITIONERS’ SUMMARY OF THE EVIDENCE IS

AN ACCURATE REFLECTION OF THE RECORD.

Respondent contends that petitioner's summary of the

evidence does not contain facts. See Resp. Br. on merits at p. 5,

n.6. Respondent also contends that petitioners’ reference to

their own mental states are not undisputed. See Resp. Br. at p.

5, n.6. Respondent's contentions about the accuracy of peti-

tioners’ summary of the evidence are wrong because peti-

tioners’ summary of the evidence is an accurate reflection of

the record below.

Petitioners’ evidentiary summary of their own mental

States is based on undisputed facts that are supported by the

record. (2 J.A. 236 and 241). For example, when Traci Baker

returned to the grand jury after her first request to consult with

respondent was granted, she asserted her Fifth Amendment

rights without advising either David Conn nor Carol Najera

that she had not consulted with respondent. Consequently, both

Conn and Najera believed that Baker had conferred with

respondent as she had requested. (2 J.A. 235-236 and 2 J.A.

240-241). Once Traci Baker returned to the grand jury after her

second request to confer with respondent was granted, she once

again asserted her Fifth Amendment rights without telling

either Conn nor Najera that she did not speak with respondent.

(2 J.A. 235-236 and 2 J.A. 240-241).

The petitioners were convinced that Traci Baker had con-

ferred with respondent each time she requested to do so based

upon the way she asserted her Fifth Amendment rights and her

failure to tell anyone she had not consulted with respondent,

which is reflected in the record, when Conn and Najera state as

follows:

“During Ms. Baker’s grand jury testimony she

requested on three (3) separate occasions to confer

with her attorney. All three (3) of her requests to

confer with her attorney were granted and / believed

she conferred with her attorney on each occasion

because on two (2) occasions she asserted her Fifth

Amendment privilege on ‘the advice of counsel’, and

2

she never indicated or stated in any manner that she

did not confer with her attorney when she was given

permission to consult with him.” (2 J.A. 236 and

241) (Emphasis added)

In contrast, respondent has not cited any part of the record

which disputes the reasonable belief of Conn and Najera that

Traci Baker had conferred with him when she was allowed to

leave the grand jury hearing room. The absence of any evi-

dence by respondent to controvert Conn and Najera’s belief,

renders undisputed the mental states of both Conn and Najera.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250,

106 S.Ct. 2505, 2511, (1986) (FRCP 56(c) provides that when

a properly supported motion for summary judgment is made

the adverse party must set forth specific facts showing that

there is a genuine issue for trial); First National Bank of

Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct.

1575, 1593, (1968) (In the face of defendants’ properly sup-

ported motion for summary judgment, the plaintiff could not

rest on his allegations of a conspiracy to get to a jury without

any significant probative evidence tending to support the com-

plaint). See also Celotex Corp. v. Catrett, 477 U.S. 317,

323-324, 106 S.Ct. 2548, 2553, (1986).

When a court determines a motion for summary judgment,

only disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry

of summary judgment. See Anderson v. Liberty Lobby, Inc. id.,

477 U.S. at 248, 106 S.Ct. at 2510. Thus, factual disputes that

are irrelevant or unnecessary will not be counted. See Anderson

v. Liberty Lobby, Inc., id., 477 U.S. at 248, 106 S.Ct. at 2510.

The facts that are material to this Court's determination of the

two questions for which certiorari was granted, are as follows:!

' Respondent's statement of facts lists other facts that are either

immaterial or irrelevant to the certiorari questions now before this Court.

For example, it is immaterial that Detective Zoeller and Officer Miller,

appeared unannounced at Baker's home although Zoeller knew she was

represented by respondent who was not present. See Resp. Br. at p. 8. The

questioning of Baker by Conn, Najera and Zoeller during the search of her

3

1. Respondent knew that he could not accompany

Traci Baker inside the grand jury hearing room.

(2 J.A. 334)

2. Traci Baker knew that respondent was not

allowed to be with her during her grand jury

testimony. (2 J.A. 376-377)

3. Respondent was not actively engaged in giving

legal advice or counsel to Traci Baker when he

was served with the search warrant. (2 J.A.

434-435 and 3 J.A. 532-533).

4. When the search warrant was served on respon-

dent, he did not ask that the search be delayed

until after his client was through testifying. (3

J.A. 541).

5. Each of Traci Baker's requests to consult with

respondent were granted without any restrictions

or limitations placed upon her by petitioners. (2

J.A. 235-236; 2 J.A. 240-241; 2 J.A. 370-371,

375, 378-379, 461-463, 467 469-471 and 3 J.A.

610-614).

6. When respondent was told that his client wanted

to speak with him about her grand jury testimony

he refused to talk to her. (2 J.A. 437-438).

7. The search warrant was valid and lawful. (Pet.

App. A, p. A-20).

8. After the two searches respondent represented

Traci Baker at the contempt proceeding. (3 J.A.

621-622)

All of the above-mentioned material facts are undisputed

because there were no facts offered by respondent to contradict

them. Consequently, the facts contained in petitioners’ Sum-

mary of the Evidence may properly be considered by this Court

home on March 18, 1994, is also immaterial. See Resp. Br. at p. 9.

Furthermore, Baker's state of mind before her grand jury testimony and

upon hearing about her possible arrest is immaterial and cited for the

purpose of emotional impact. See Resp. Br. at p. 13. Moreover, Baker's

distress, upset and agitation when respondent did not speak with her is

immaterial. See Resp. Br. at p. 15.

4

as part of its certiorari review because said facts are uncon-

troverted.

Il. RESPONDENT’S BRIEF ON THE MERITS CON-

TAINS FACTUAL INACCURACIES THAT ARE NOT

SUPPORTED BY THE RECORD.

Respondent's brief contains factual inaccuracies that peti-

tioners will identify for this Court, because the inaccuracies

that are being relied upon by respondent are not supported by

the record. Respondent alleges in his Statement of Facts that

Conn had planned that the warrant for Gabbert would be

executed as Baker was summoned into the grand jury room to

commence her testimony. See Resp. Br. at p.10. Respondent

cites 3 J.A. 492; plus 495-497, as the evidentiary support for

this spurious assertion. A review of the record at 3 J.A. 492

and 495-497 reveals that there is no mention or suggestion

made by Conn that he planned to have the warrant executed on

respondent when Baker was called before the grand jury.

Therefore, this Court should reject respondent’s baseless asser-

tion that Conn planned the search to occur at the time Baker

was to testify before the grand jury. See Russell v. Southard, 12

How. 139, 158-159 (1851) (This court must affirm or reverse

upon the case as it appears in the record); Adickes v. Kress &

Co., 398 U.S. 144, 157-158 n. 16, 90 S.Ct. 1598, 1608 n. 16,

(1970) (The lawfulness of the conviction and sentence of the

defendant is to be determined by the formal record).

Respondent also makes the false contention that during

oral argument before the Ninth Circuit, petitioners’ counsel

conceded that service of the warrant was timed to take advan-

tage of the nervousness of Baker and the distraction it would

cause the respondent. Resp. Br. at p.36. A close review of the

record shows that petitioner’s counsel did not concede that

Conn or Najera timed the service of the warrant to take

2 Conn and Najera never stated or implied in their declarations (2 J.A.

233-242) nor in their deposition testimony (3 J.A. 483-547) that the service

of the warrant on respondent was somehow timed to take advantage of

Baker or respondent.

5

advantage of either respondent or Baker, because Mr. Renick

responded as follows:

“THE COURT: and why did they choose not to?

MR. RENICK: Probably to take advantage and —

I mean, without getting into

whether or not that’s — in fact,

let's assume that they were doing

that to take advantage.” (See App.

B of Resp. Br. on Merits at pp.

27-28) (Emphasis added)

Mr. Renick also made it clear to the Court of Appeal that

Conn and Najera did not plan to prevent Baker from communi-

cating with respondent}, by stating:

“THE COURT: But you just told us earlier that

was part of their plan.

MR. RENICK: _ I'm saying we can assume. Let us

assume that.

THE COURT: That’s why they -

MR. RENICK: No, not — not — I certainly . . . , if

I did, I apologize. ] never said

that their purpose presumptively

was to prevent communication. If

anything, it would have been Ms.

Baker’s being questioned to

reveal information that she’s

reluctant to reveal”. (See App. B

of Resp. Br. on merits, at pp.

32-33) (Emphasis added)

Respondent further asserts in his Statement of Facts that

Conn and Najera were determined, “by whatever means avail-

able”, to obtain the letter from Lyle Menendez to Traci Baker

and to win the trial. See Resp. Br. at p. 7. In support of this

allegation respondent relies on two newspaper articles from the

Los Angeles Times. See Resp. Br. at p. 7. Since these articles

3 There is no statement expressly or implicitly by Conn or Najera that

they intended to prevent respondent from communicating with Ms. Baker.

(2 J.A. 233-242).

6

are not part of the official record, there is no evidentiary basis

for the factual assertions made by respondent. Hence, the

allegation should be stricken and not considered by this Court.*

Respondent also makes the misleading contention that he

was physically sequestered away fronihis client as a result of

being served with the search warrant. See Resp. Br. at p.34.

This assertion is disingenuous because when respondent was

served with the warrant he requested a private room and his

request was granted. (2 J.A. 435). In addition, both respondent

and Baker knew they would be physically separated from each

other when she testified before the grand jury regardless of

whether a warrant was served. (2 J.A. 334, and 376-377).

Ill. PETITIONERS DID NOT CAUSE RESPONDENT'S

FOURTEENTH AMENDMENT RIGHTS TO BE

VIOLATED WHEN HE WAS SEARCHED WHILE

HIS CLIENT WAS TESTIFYING BEFORE THE

GRAND JURY.

The central issue before this Court is whether a prosecutor

violates an attorney’s rights under the Fourteenth Amendment

by causing the attorney to be searched at the time his client is

testifying before a grand jury. (3 J.A. 696). However, instead of

directly addressing this issue, respondent’s brief discusses

unrelated issues and never fully responds to the first certiorari

question. For example, respondent argues that Baker had a

right to expect that the government would not interfere with

her legal representation. See Resp. Br. pp. 20-23. This argu-

ment does not address either of the certiorari questions,

because an alleged violation of Baker’s rights cannot be the

basis for establishing a violation of respondent’s rights. See

Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205 (1975)

+ Newspaper articles are generally inadmissible hearsay that are not

considered by courts when ruling on a motion for summary judgment. See,

e.g. Horta v. Sullivan, 4 F.3d 2, 8 (ist Cir. 1993); Eisenstadt v. Centel

Corp., 113 F.3d 738, 742-743 (7th Cir. 1997); Bonilla v. City of San Diego,

755 F.Supp. 293, 298 n.5 (S.D. Cal. 1991).

7

(Plaintiff cannot rest his claim for relief on the rights of third

parties).

Respondent also contends that a lawyer’s guidance to his

client is critical at the grand jury stage because the client's

liberty is at stake. See Resp. Br. pp. 23-26. Here again, respon-

dent focuses on his client’s rights as somehow providing the

basis for a violation of his Fourteenth Amendment rights.

Furthermore, this Court has twice suggested, though not held,

that the Sixth Amendment right to counsel does not attach

when an individual is summoned to appear before a grand jury,

even if she is the subject of the investigation. See United States

v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 1743 (1992).

Since there is no Sixth Amendment right to counsel at a grand

jury proceeding, a lawyer’s guidance at the grand jury stage

should not be deemed critical.

The reason respondent has failed to answer the first cer-

tiorari question is because a prosecutor does not violate an

attorney’s rights under the Fourteenth Amendment by causing

the attorney to be searched at the time his client is testifying

before a grand jury. The right to hold specific private employ-

ment and to follow a chosen profession free from unreasonable

government interference falls within the liberty concept of the

Fourteenth Amendment. See Greene v. McElroy 360 U.S. 474,

492, 79 S.Ct. 1400, 1411 (1959). However, the Constitution

only protects liberty interests from state actions that threaten to

deprive persons of the right to pursue their chosen occupation.

See Piecknick v. Com. of Pennsylvania, 36 F.3d 1250, 1259

(3rd Cir. 1994); Bernard v. United Township High School Dist.

No. 30, 5 F.3d 1090, 1092 (7th Cir. 1993).

To establish a Fourteenth Amendment substantive due

process claim predicated on the right to practice one’s profes-

sion, an attorney must show that he was banned or excluded

from his profession. See e.g. Wedges/Ledges of California, Inc.

v. City of Phoenix, Az., 24 F.3d 56, 65 (9th Cir. 1994); Federal

Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 474 (9th Cir.

1991). Here, the record shows that respondent was neither

banned nor excluded from the practice of law due to two

primary reasons. First and foremost, each time Traci Baker

made a request to consult with respondent, her request was

8

granted without any restrictions. (3 J.A. 610-614; 2 J.A.

461-463, 467 and 469-471). Secondly, when respondent was

advised that his client needed to talk with him, he refused to

speak with her. (2 J.A. 437-438).

Since respondent was neither excluded nor banned from

practicing law, his Fourteenth Amendment right to practice his

profession was not violated by Conn or Najera. Furthermore,

petitioners did not unreasonably interfere with respondent’s

right to practice his profession, because Baker was released to

speak with respondent during the search, but it was respondent

who made the decision not to consult with her. (2 J.A.

437-438). In addition, respondent’s Fourteenth Amendment

rights were not violated when the warrant was served on him

because he was not engaged in giving legal advice to Baker

when the warrant was served. (2 J.A. 434-435 and 3 J.A.

532-533). Moreover, since respondent had no right to be pre-

sent with Baker when she was testifying before the grand jury,

the service of the warrant on him while she was testifying did

not deprive him of his right to practice his profession.

A. The Petitioners Did Not Prevent Respondent From

Communicating With His Client.

Respondent contends that Conn and Najera prevented him

from communicating with his client. See Resp. Br. at pp.

28-30. This contention is specious because Conn and Najera

gave Traci Baker access to respondent without placing any

limitations on either of them. For example, each of Baker's

requests to consult with respondent were granted. (2 J.A.

235-236; 2 J.A. 240-241; and 3 J.A. 610-614). When Traci

Baker was allowed to leave the grand jury to consult with

respondent, pursuant to her first request, Patty Jo Fairbanks

informed respondent that his client needed to speak with him.

(2 J.A. 438). Instead of taking the opportunity to speak with

Traci Baker, respondent refused to do so and bluntly

responded: “That’s tough. They created this situation. They can

wait as long as it takes.” (2 J.A. 438). If Conn and Najera were

truly attempting to prevent respondent from speaking with

Baker, they would have stopped her from leaving the grand

9

jury hearing room, or limited the length or content of her

discussion with respondent. Obviously, none of these kinds of

restrictions occurred here.

Instead of refusing to speak with his client, respondent

could have simply asked the special master, Elliot Oppenheim,

to stop the search and leave the room so that he could speak

with his client in private. There was no state law nor District

Attorney’s Office policy or regulation that prevented the spe-

cial master from stopping the search to allow respondent to

consult with his client. Further, Conn and Najera did not tell

the special master that the search could not be interrupted. In

addition, Conn and Najera did not do anything to prevent

respondent from simply asking the special master to interrupt

the search so that he could confer with his client.

If respondent had asked the special master to stop the

search so he could consult with his client there would have

been no reason for the special master to deny his request.

Therefore, if respondent had asked, the special master would

have stopped the search and left the room so that respondent

could advise Baker in private. Thus, just as respondent's

request for a private room to conduct the search was granted (2

J.A. 435); if he had only bothered to ask, the search would

have been temporarily stopped.

In light of respondent’s own actions, his claim that Conn

and Najera either prevented him or interfered with his ability to

speak with his client should be rejected by this Court. Sim-

ilarly, the Ninth Circuit also rejected respondent’s claim that

Conn and Najera prevented him from speaking with his client

due to the following:

THE COURT: How can he complain that his ability

to communicate with his client, who needed his

advice, was being impaired when he tells them, Look

it. I don’t want to talk with her?

If the real hub of the problem here was that the

search warrant was executed at the very time the

client needed advice from her lawyer, doesn’t the

10

passage read to you from your client’s own deposi-

tion suggested that he caused that conflict by his own

actions.

THE COURT: Does the record show that he

was — that if he had wanted to

talk with her at that moment

that he was physically

restrained from doing so?

M. LIGHTFOOT: Well, I don’t think the record

speaks to that... ” (See Resp.

Br. on merits, App. B, at pp.

B-5 thru B-6).

Since Conn and Najera did not prevent Traci Baker from

having access to respondent, and because respondent chose not

to speak with Baker, petitioners were not the cause of respon-

dent’s alleged failure to speak with his client.

B. Respondent Cannot Base His Fourteenth Amendment

Claim Upon An Alleged Violation Of His First

Amendment Rights Because He Failed To Raise A

First Amendment Claim Below.

This Court granted certiorari on the question of whether

respondent’s Fourteenth Amendment rights were violated when he

was being searched at the time his client was testifying before the

grand jury. (3 J.A. 696). It is obvious from this Court’s order that

respondent’s First Amendment rights are not properly before this

Court. Nevertheless, respondent makes the claim that Conn and

Najera violated his First Amendment rights. See Resp. Br. at pp.

33-35.

Respondent’s attempt to somehow predicate his Fourteenth

Amendment claim on an alleged violation of his First Amendment

rights should not be considered by this Court, because a First

Amendment claim is outside the bounds of the order of certiorari.

See Regents of the University of California v. Doe, 519 U.S. 425,

117 S.Ct. 900, 905 (1997) (Court declined to address a question or

argument that was not encompassed within the question certiorari

was granted upon); See also Yee v. City of Escondido, Cal., 503

U.S. 519, 533, 112 S.Ct. 1522, 1531, (1992). Furthermore, this

Court should refuse to address respondent’s newly raised First

>

Amendment argument because he failed to raise a First Amend-

ment claim in either the district court or the Ninth Circuit.> See

DeShaney v. Winnebago Soc. Serv., 489 U.S. 189, 195, n. 2, 109

S.Ct. 998, 1003, n.2, (1989) (Argument made for first time in brief

that was not pleaded in complaint; not argued to court of appeals;

and not raised in petition for certiorari would not be considered);

Granfinanciers v. Nordberg, 492 U.S. 33, 38, 109 S.Ct. 2782, 2788,

(1989) (Court declined to address argument not raised below.);

Dothard v. Rawlinson, 433 U.S. 321, 323, n.1 97 S.Ct. 2720, 2724,

n.1 (1977) (Issue raised for first time in brief and not having been

raised in District Court is not before Court); See also, Youngberg v.

Romeo, 457 U.S. 307, 316, n. 19, 102 S.Ct. 2452, 2458, n. 19

(1982) and Pennsylvania Dept. Of Corrections v. Yeskey, ____ U.S.

__., 118 S.Ct. 1952, 1956 (1998).

Respondent concedes in his brief that his Fourteenth Amend-

ment claim is based upon the substantive component of the due

process clause. See Resp. Br. at pp. 27-28, n. 15. Since respondent

is only making a substantive due process claim, he cannot look to

the First Amendment as the basis for his relief. See County of

Sacramento v. Lewis, 523 U.S. __, 118 S.Ct. 1708, 1714-1715

(1998) (Substantive due process analysis inappropriate if respon-

dent’s claim is covered by the Fourth Amendment); see also

Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871

(1989).

Due to respondent's failure to raise a First Amendment issue

in either the district court or the court of appeal, and because of the

limited scope of this Court’s order of certiorari, petitioners’

respectfully request that this Court decline to consider any First

Amendment issues.

C. Petitioners Did Not Engage In Conscience Shocking

Or Deliberate Indifferent Conduct.

This Court’s cases dealing with abusive executive action have

repeatedly emphasized that only the most egregious official con-

duct can be said to be arbitrary in the constitutional sense. See

5 Respondent's Complaint fails to allege the First Amendment as the

basis for his relief. (See | J.A. 24-28).

12

County of Sacramento v. Lewis, id., 118 S.Ct. at 1716; Collins v.

Harker Heights, Texas, 503 U.S. 115, 129, 112 S.Ct. 1061, 1071

(1992). Respondent argues in part that petitioners’ conduct shocked

the conscience because they engaged in deception. See Resp. Br. at

pp. 37-39. According to respondent's argument, Conn deceived

him about giving Traci Baker immunity.®

Respondent's contention that Conn deceived him into believ-

ing Baker would be granted immunity is pure sophistry for a

myriad of reasons. First, neither Conn nor respondent could agree

on the type or extent of the immunity to be offered Baker. (2 J.A.

430; 3 J.A. 490-491). It was also unclear whether Baker would

accept the use immunity being discussed by Conn and respondent.

(2 J.A. 430). Further, Traci Baker had to provide a statement before

she would be offered use immunity. (3 J.A. 489). Additionally,

respondent was not inclined to accept the use immunity being

contemplated by Conn. (2 J.A. 431). Moreover, respondent knew

that notwithstanding the discussion of use immunity his client still

had to testify before the grand jury, because Conn testified as

follows at his deposition:

“... and he spoke about some sort of a letter outlining

what it was that I was proposing. And I said, you know,

“If that will help, we could do that. But now is the time.

Today's the day I would just like to do it now” and he

said, “I really can’t do anything today. I would like to

research this area” . . . so I said, “All right. Let's just go

downstairs, and we'll ask our questions. And if she’s

going to take the Sth, then she takes the Sth.” (3 J.A.

491)

In support of his argument that petitioners engaged in con-

science-shocking conduct respondent cites the case of Moran vy.

Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986). See Resp. Br. at pp.

© Any alleged wrongful conduct by Zoeller and Miller in late

February; or the prosecutor's search of Baker’s home on March 18; or

Conn’s statement about whether Baker might surrender, are unrelated to

respondent's Fourteenth Amendment rights, because an alleged violation

of a third party's rights before the search on March 21, cannot be

considered a violation of respondent's rights. See Warth v. Seldin, id., 422

U.S. at 499, 95 S.Ct. at 2205.

13

37-38. Although this Court noted in Moran that police deception

might rise to the level of a due process violation, this was not the

holding of the court and it is better characterized as dicta. Further-

more, any alleged deception by Conn is insufficient to establish a

substantive due proceses claim here, because the so-called “decep-

tion” did not cause respondent to either waive or forfeit his

Fourteenth Amendment rights. See e.g. Moran v. Burbine, id., 475

U.S. at 423-424, 106 S.Ct. at 1142 where this Court held:

“Granting that the deliberate or reckless withholding of

information is objectionable as a matter of ethics, such

conduct is only relevant to the constitutional validity of

a waiver if it deprives a defendant of knowledge essen-

tial to his ability to understand the nature of his mghts

and the consequences of abandoning them.”

Since respondent did not waive any of his Fourteenth Amend-

ment rights as a result of the purported deception, the alleged

wrongful conduct was not the cause of a violation of respondent's

rights. Consequently, respondent cannot base his Fourteenth

Amendment claim on conduct, regardless of whether it is wrongful,

that is not the cause of a violation of his Fourteenth Amendment

rights. See Fried v. Hinson, 78 F.3d 688, 691-692 (D.C. Cir. 1996)

(By its terms, the due process clause does not apply unless an

individual can show that the government action at issue deprives

him of an actual interest in life, liberty or property). See also City

of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427,

2436 (1985) (At the very least there must be an affirmative link

between the policy and the particular constitutional violation

alleged).

Respondent also argues that petitioners were deliberately

indifferent to his right to counsel his client. See Resp. Br. at pp.

42-44. The deliberate indifference standard is a subjective test and

not an objective standard. See Farmer v. Brennan, 511 U.S. 825,

837, 114 S.Ct. 1970, 1979 (1994). Thus, to establish deliberate

indifference, government officials must know of and disregard an

excessive risk of harm. See Farmer v. Brennan, id., 511 U.S. at

837, 114 S.Ct. at 1979.

A review of the facts reveals that petitioners were not deliber-

ately indifferent to respondent’s Fourteenth Amendment right to

14

on respondent, he was not engaged in advising his client. (2 J.A.

434-435 and 3 J.A. 532-533). Once the warrant was served respon-

dent did not ask that the search be delayed until after his client

testified. (3 J.A. 541). Each of Traci Baker's requests to speak with

respondent once her grand jury testimony had begun were granted.

(3 J.A. 610-614). Each time Baker returned to the grand jury she

asserted her Fifth Amendment rights and she never told Conn or

Najera that she did not speak with respondent. (2 J.A. 236 and 241;

3 J.A. 610-614). When respondent was informed that his client

needed to speak with him, he refused to talk with her. (2 J.A.

437-438).

The above facts demonstrate that petitioners did not know of,

nor did they disregard, an excessive risk of harm to respondent's

Fourteenth Amendment rights. Since Conn and Najera did not have

subjective knowledge of the fact that Baker did not consult with

respondent, and because petitioners were not presented with suffi-

cient facts to draw such an inference, their conduct was neither

conscience shocking nor deliberately indifferent.

Respondent also argues that Conn and Najera acted with

deliberate indifference because there were less intrusive alterna-

tives available to them. See Resp. Br. at pp. 44-45. This argument

is untenable because the availability of alleged less intrusive alter-

natives is not part of the deliberate indifference standard. See

Farmer v. Brennan, id., 511 U.S. at 837, 114 S.Ct at 1979.

Furthermore, the likelihood of other alternatives constitutes, at

most, negligence which is insufficient to establish a substantive due

process violation.’ See County of Sacramento v. Lewis, id., 118

S.Ct. at 1718 (Liability for negligently inflicted harm is cate-

gorically beneath the threshold of constitutional due process); see

also Daniels v. Williams, 474 U.S. 327, 333, 106 S.Ct. 662, 666

(1986).

Since the facts show that, at best, petitioners’ conduct might

have been negligent, the conduct of Conn and Najera was far

7? Petitioners’ do not concede nor suggest in any manner that their

conduct was somehow negligent.

15

below the level of conscience shocking or deliberately indifferent

conduct.®

IV. RESPONDENT’S CHALLENGE TO THE VALIDITY

OF THE WARRANT IS BEYOND THE SCOPE OF THE

ORDER GRANTING CERTIORARI.

According to respondent's brief, he disputes that the warrant

was validly obtained or executed by the special master. See Resp.

Br. at p. 41. Any challenge respondent may have had to the validity

of the warrant cannot be raised here and should not be considered

by this Court, because the validity of the warrant and the rea-

sonableness of its execution are Fourth Amendment issues that are

far beyond the scope of the order of certiorari. (3 J.A. 696); see

also Matsushita Elec. Indus. Co. Ltd. v. Epstein, 516 U.S. 367, 116

S.Ct. 873, 880 n.5 (1996) (Court declines to consider a question

outside the scope of the question on which certiorari is granted).

The Ninth Circuit also rejected respondent's challenge to the

validity of the warrant. (App. A to Pet. For Writ of Cert., at

p.A-20). In addition, respondent's challenge to the execution of the

warrant was denied by the Ninth Circuit because the special master

was granted absolute quasi-judicial immunity. (App. A to Pet. For

Writ of Cert., at p.A-24). Consequently, respondent's claims that

there were material misstatements in the warrant application; that

the warrant was impermissibly overbroad; or that the warrant was

executed in an egregious manner have all been resolved against

him.

The significance of the validity of the warrant lies in the fact

that the government's conduct was reasonable here, because the

8 The district court held that Conn and Najera did not engage in

conscience shocking conduct (1 J.A. 178-179) and respondent's brief to the

court of appeal did not specifically address the issue of conscience

shocking conduct. Therefore, respondent may have waived his claim that

petitioners engaged in conscience shocking conduct. See e.g. Officers for

Justice v. Civil Service Comm., 979 F.2d 721, 726 (9th Cir. 1992), cert.

denied 113 S.Ct. 1645 (1993) (failure to raise an issue on appeal results in

waiver of that issue).

16

warrant and its execution were lawful under the Fourth Amend-

ment. In other words, petitioners’ alleged interference with respon-

dent's right to practice his profession cannot be considered

conscience shocking, deliberate indifference nor unreasonable,

because the special master executed a lawful search warrant.

Vv. RESPONDENT DID NOT HAVE A CLEARLY ESTAB-

LISHED FOURTEENTH AMENDMENT RIGHT THAT

PREVENTED HIM FROM BEING SEARCHED AT THE

TIME HIS CLIENT TESTIFIED BEFORE THE GRAND

JURY.

According to this Court’s order of certiorari, the second

question before this Court is whether respondent had a clearly

established nght in March 1994, under the Fourteenth Amendment,

not to be searched at the time his client was testifying before the

grand jury. (3 J.A. 696). Since respondent's claim is based upon the

substantive component of the due process clause there must be a

violation of a fundamental liberty interest. See Reno v. Flores, 507

U.S. 292, 302, 113 S.Ct. 1439, 1447 (1993); Washington v. Glu-

cksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267 (1997). The due

process clause only protects those fundamental rights and liberties

which are objectively and deeply rooted in our nation’s history and

tradition. See Washington v. Glucksberg, id., 117 S.Ct. at 2268.

Although an attorney has a fundamental right to practice his

profession,®? neither this Court nor any of the 12 federal circuit

courts have held or suggested that an attorney has a fundamental

liberty interest not to be subjected to a lawful search warrant at the

time his client is testifying before the grand jury. Furthermore,

there are no district courts that have held that at a grand jury

proceeding an attorney cannot be searched while his client testifies.

On the other hand, the federal case law does suggest that there is

no fundamental right which prevents an attorney from being

searched, pursuant to a valid warrant, at the time his client is

9 See Schware v. Board of Bar Exam’s of New Mexico, 353 U.S. 232,

233-239, 77 S.Ct. 752, 756 (1957); Greene v. McElroy, 306 U.S. 474, 492,

79 S.Ct. 1400, 1411 (1959)

17

before the grand jury testifying. See e.g. United States v. Mandu-

jano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1779 (1976) (Witness

before grand jury has no constitutional right to be represented by

counsel and counsel may not be in grand jury room). Since

respondent had no right to be present with his client when she

testified before the grend jury, he certainly did not have a funda-

mental right that would preclude him from being subjected to a

valid search warrant at the time his client testified before the grand

jury.

According to respondent’s brief, the petitioners had fair warn-

ing, as set forth in United States v. Lainer, 520 U.S. 259, 117 S.Ct.

1219 (1997), that subjecting him to a search at the time his client

was testifying before the grand jury was unconstitutional under the

Fourteenth Amer ‘iment. See Resp. Br. at pp. 45-46. The fair

warning standard announced by this Court in Lainer is the same as

the clearly established law standard articulated by this Court in

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987). See

United States v. Lainer, id., 117 S.Ct. at 1227 (So conceived, the

object of the clearly established immunity standard is not different

from that of fair warning as it relates to law made specific for the

purpose of validly applying section 242). The requirement that a

right be clearly established guarantees that government officials

have sufficient notice of the legal standards that govern their

conduct. See Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012,

3019 (1984). Thus, in order to give adequate notice a court must

identify the right infringed at a high level of particularity.'° See

Anderson v. Creighton, id., 483 U.S. at 639, 107 S.Ct. at 3038;

Jean v. Collins, 155 F.3d 701, 708 (4th Cir. 1998).

Although Anderson does not require that a prior case have

held identicial conduct to be unlawful, government offficials can-

not be ambushed by newly invented theories of liability or by

unforeseen applications of old ones. See Jean v. Collins, id., 155

F.3d at 708; see also Lassiter v. Alabama A & M Univ. 28 F.3d

1© Since the right infringed must be identified at a high level of

particularity, this Court should adopt the bright line standard for

determining when the law is clearly established. See e.g. Porterfield v. Lott,

156 F.3d 563, 567 (4th Cir. 1998).

—

1146, 1150 (11th Cir. 1994) (En Banc) (For qualified immunity to

be surrendered, preexisting law must dictate, that is, truly compel

and not just suggest or allow or raise a question about the conclu-

sion for every like-situated, reasonable government official that

what the defendant is doing violates federal law under the circum-

stances). Here, the facts and circumstances confronting Conn and

Najera were so unique that they could not have foreseen that their

conduct was somehow in violation of substantive due process. See

Reno v. Flores, id., 507 U.S. at 303, 113 S.Ct. at 1447 (The mere

novelty of a claim is reason enough to doubt that substantive due

process sustains it).

Respondent contends that Keker v. Procunier, 398 F.Supp. 756

(E.D. Cal. 1975), provides clearly established law to support his

claim that his Fourteenth Amendment rights were violated when he

was searched at the same time his client was testifying before the

grand jury. See Resp. Br. at p.49, n. 22. The Keker decision is

insufficient to stake out the clearly established law applicable to

the facts and circumstances Conn and Najera faced, because this

Court has generally looked to its own case precedents or federal

circuit court precedent, instead of district court decisions, as the

relevant legal authority for determining whether the law is clearly

established. See e.g. Davis v. Scherer, id., 468 U.S. at 192, 104

S.Ct. at 3018; Elder v. Holloway, 510 U.S. 510, 513-516, 114 S.Ct.

1019, 1022-1023 (1994); United States v. Lainer, id., 117 S.Ct. at

1226. Consequently, this Court should now adopt, as a general rule,

that the relevant legal authority for deciding when the law is

clearly established is either a decision(s) of this Court or of the 12

federal circuits, but not the numerous district courts. See e.g. Jean

v. Collins, id., 155 F.3d at 709 (Public officials cannot be expected

to master the entire corpus of the case law in addition to fulfilling

their public responsibilities).

Another reason why Keker cannot be used here as the measure

of clearly established law is because the case arises in a prison

context, whereas the case involving petitioners and respondent

arises from a grand jury proceeding. In Keker, the attorneys were

actively engaged in conferring with their clients when they had to

meet with him in an uncomfortably hot interview room, were

separated from him by a glass partition, had to communicate with

him by telephone and were under continual surveillance by a

19

guard. In contrast, when respondent was served with the search

warrant, he was not actively engaged in conferring with his client.

(2 J.A. 434-435). Furthermore, when respondent’s client was testi-

fying before the grand jury he had no recognized right to confer

with her at that time. See United States v. Mandujano, id., 425 U.S.

at 581, 96 S.Ct. at 1779. Since respondent was not actively

engaged in advising or visiting with Traci Baker at the time she

was testifying before the grand jury, and had no right to be with her

inside the grand jury hearing room, the Keker case did not provide

“fair warning” to either Conn or Najera that it would be a violation

of respondent’s Fourteenth Amendment rights to cause him to be

searched at the time Baker was testifying before the grand jury.

A further reason why the Keker case did not make it apparent

based upon the facts and circumstances faced by Conn and Najera,

that subjecting respondent to a lawful search was unconstitutional

under the Fourteenth Amendment, is because it gives inadequate

guidance on whether the alleged constitutional infringement

claimed by respondent was narrowly tailored to serve a compelling

state interest. A fundamental liberty interest may be infringed when

the infringement is narrowly tailored to serve a compelling state

interest. See Reno v. Flores, id., 507 U.S. at 302, 113 S.Ct. at 1447;

Washington v. Glucksberg, id., 117 S.Ct. 2268. Although it is

petitioners’ unequivocal position that they did not violate respon-

dent’s Fourteenth Amendment rights, if one assumes merely for the

sake of argument, that respondent’s Fourteenth Amendment rights

were violated, there is still no clearly established law that the

service of a warrant at the time the attorney’s client is testifying

before a grand jury does not serve a compelling state interest.

Here, the service of a warrant on respondent when Traci

Baker was testifying before the grand jury did in fact serve a

compelling state interest. Since the search warrant was related to a

pending grand jury proceeding it served the compelling state

interest of determining whether a crime, specifically, perjury, had

been-committed. See United States v. R. Enterprises, Inc., 498 U.S.

292, 297, 111 S.Ct. 722, 726 (1991) (The function of the grand

jury is to inquire into all information that might possibly bear on its

investigation until it has identified an offense or has satisfied itself

that none has occurred).

20

In light of the fact that the search warrant served a compelling

state interest, then even if one assumes that there was an infringe-

ment of respondent’s Fourteenth Amendment rights, there was still

no clearly established violation of the Fourteenth Amendment Sze

e.g. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct.

2400, 2404 (1987) (When a prison regulation impinges on an

inmates’ constitutional rights, the regulation is valid if it is reason-

ably related to legitimate penological interests, (quoting Turner v.

Safley, 482 U.S. 78, 89 (1987)).

CONCLUSION

For all of the foregoing reasons, as well as the reasons set

forth in petitioners’ brief on the merits, the Judgment of the United

States Court of Appeals for the Ninth Circuit in favor of respon-

dent on the Fourteenth Amendment claim should be reversed.

Dated: January 19, 1999

Respectfully submitted,

Kevin C. Brazice *

Lioyp W. PeLLMAN

County Counsel

DonovaAN Main

Senior Assistant County Counsel

Louis V. AGuILAR

Assistant County Counsel

Los Angeles County Counsel's

Office

648 Kenneth Hahn Hall of

Administration

500 West Temple Street

Los Angeles, California 90012

(213) 974-1943

Attorneys for Petitioners

*Counsel of Record