Appeal from the United States District Courtfor the Central District of CaliforniaRonald S.W. Lew, District Judge, PresidingArgued and SubmittedSeptember 11, 1997--Pasadena, CaliforniaFiled December 8, 1997Before: Harry Pregerson and Michael Daly Hawkins,Circuit Judges, and Charles R. Weiner,* District Judge.Opinion by Judge Hawkins
______________________COUNSEL Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde & Sad-owsky, Los Angeles, California, for the plaintiff-appellant.Robert S. Wolfe and Steven J. Renick, Manning, Marder &Wolfe, Los Angeles, California, for defendants-appelleesDavid Conn and Carol Najera.Scott D. MacLatchie and Priscilla F. Slocum, Franscell,Strickland, Roberts & Lawrence, Pasadena, California, fordefendants-appellees Leslie Zoeller and Elliot Oppenheim.OPINIONHAWKINS, Circuit Judge:The prosecution and defense of criminal allegations pro-duce ample opportunity for adversarial conflict. Without evenlooking for trouble, the interests of prosecution and defensecan collide. This appeal demonstrates what can happen whenone side steers those forces into direct and obvious conflict.Here, the prosecution's desire to gather evidence for the re-trial of a high-profile murder case runs directly into a defenseattorney's right to consult with his client. The result is not apretty picture. It is made all the worse because it appears tohave been an entirely avoidable collision.The case comes to us in the form of a civil rights damageaction. Attorney Paul L. Gabbert ("Gabbert") wishes to pur-sue the action against two deputy district attorneys, a policeofficer, and a court-appointed special master. He alleges vio-lations of his Fourth and Fourteenth Amendment rights aris-ing out of a search of his person and effects executed justmoments before his client entered a grand jury room. The dis-trict court dismissed Gabbert's Fourth Amendment claim andgranted summary judgment for the defendants on his Four-teenth Amendment claims. We have jurisdiction pursuant to28 U.S.C. S 1291.We hold that Gabbert had a clearly established right to pur-sue his profession without undue and unreasonable govern-mental interference and that no reasonable prosecutor orpolice officer could have believed that the worst of this con-duct was lawful. We also hold that a second search of Gab-bert, which violated both state law and the face of the warrant,amounted to a warrantless and therefore unreasonable search.I. FACTSGabbert represented Traci Baker ("Baker"), a defense wit-ness in the first murder trial of Lyle and Erik Menendez.1After the close of evidence in that trial, Los Angeles CountyDeputy District Attorneys David Conn ("Conn") and CarolNajera ("Najera") learned that Lyle Menendez had written aletter to Baker in which he allegedly instructed her to testifyfalsely.Armed with this information, Conn obtained a subpoenadirecting Baker to testify before a grand jury and produce anycorrespondence that she had received from Lyle Menendez.Beverly Hills Police Department Detective Leslie Zoeller("Zoeller"), an investigating officer in the Menendez case,served that subpoena on Baker at Gabbert's law office.The next day, Gabbert sought to file a motion to quash thatportion of the subpoena requiring Baker to produce corre-spondence from Menendez. A Los Angeles Superior CourtJudge declined to accept Gabbert's motion for filing and alsodenied his application for an order shortening time for thehearing on the motion to quash.At about this same time, Conn, Najera, and Zoellerobtained a warrant to search Baker's apartment for anyMenendez correspondence. When presented with the warrant,Baker informed Detective Zoeller that she had given any cor-respondence from Lyle Menendez to Gabbert. Zoeller relayedthis information to Conn and Najera.Three days later, Gabbert accompanied Baker to her sched-uled grand jury appearance. As Gabbert and Baker walkedinto the building where the appearance was to take place,Conn approached Gabbert and asked him if he had broughtthe "documents" with him. Conn was referring to the Menen-dez correspondence, but Gabbert thought Conn was referringto Gabbert's motion to quash and accompanying documents.Based on Gabbert's response, Conn decided to obtain awarrant to search Gabbert and directed Detective Zoeller tosecure it. Under California law, the search of an attorney orlaw office must be conducted by a court-appointed specialmaster. In this instance, Elliot Oppenheim ("Oppenheim"), aretired lawyer, was authorized to search Gabbert and hiseffects.As Baker and Gabbert were waiting outside the grand juryroom, Zoeller, at Conn's direction, served Gabbert with thesearch warrant. At Gabbert's request, the search took place ina private room adjacent to the grand jury room. Before he wasactually searched, Gabbert gave Oppenheim two photocopiedpages of a three-page letter from Lyle Menendez to Baker,informing Oppenheim that this was the only document on hisperson or in his effects that constituted correspondencebetween Menendez and Baker. Oppenheim proceeded tosearch Gabbert's files, including at least two files that clearlyinvolved clients other than and unrelated to Baker. WhenGabbert protested, Oppenheim proceeded to review the filesanyway. Oppenheim also examined the contents of Gabbert'sbriefcase, including his calendar, wallet, dictaphone, eyeglasscase, and notepad.Within minutes of the search warrant was being executedon Gabbert, Najera, also acting at Conn's direction, calledBaker before the grand jury and began to question her. Inresponse to the first question, Baker asked to leave the grandjury room to consult with her attorney. Gabbert, of course,was being searched at this very moment.Conn's secretary located Gabbert in the room where he wasbeing searched and informed him that his client needed tospeak with him. Gabbert, apparently unaware that his clientwas immediately outside the room, declined to leave. Insteadhe informed the secretary that the prosecution, which at leastin his mind had created the problem, would have to simplydelay questioning Baker further while the search was beingcarried out.Baker then returned to the grand jury room and, reading offa card she had prepared in advance, asserted her Fifth Amend-ment privilege against self-incrimination on "the advice ofcounsel." In response to a second question from Najera, Bakeragain asked to speak with her attorney and left the room. Gab-bert was nowhere to be seen. Baker waited in the hallwayuntil a bailiff appeared, telling her to return to the grand juryroom where she once again asserted her Fifth Amendmentprivilege.Conn thereupon moved to hold Baker in contempt for fail-ing to produce the documents subject to the subpoena, and thegrand jury took a break. Conn, Najera, and Zoeller, withBaker in tow, then joined Oppenheim and Gabbert in theroom where Oppenheim had just searched Gabbert. Oppen-heim informed Conn that Gabbert did not possess the materi-als subject to the search warrant, but that Gabbert's effects didnot contain privileged matters. Gabbert disputed this state-ment and informed Conn that he had files of other clients aswell as privileged matters concerning Baker (e.g., Gabbert'snotes of his interview with Baker). Conn thereupon informedGabbert that Detective Zoeller would conduct a follow-upsearch of Gabbert's person and effects. Gabbert neither con-sented to nor resisted this search which was carried out byZoeller with Conn and Najera looking on. Oppenheim took nopart in this second search.II. PROCEDURAL HISTORYGabbert contends his Fourth Amendment right to be freefrom unreasonable searches and seizures and his FourteenthAmendment right to practice his profession without unreason-able governmental interference were both violated. The dis-trict court dismissed his Fourth Amendment claims, findingthat Zoeller and Oppenheim had absolute immunity and Connand Najera had qualified immunity. The district court foundthat Zoeller, as a public officer executing a court order, hadquasi-judicial immunity and that Oppenheim was immunefrom suit as a judicial officer performing a judicial function.The district court declined to give the deputy district attorneysabsolute immunity because it found they were acting as inves-tigators, not advocates, during the search and grand jury pro-ceeding. Finally, the district court denied the defendants'motion to dismiss Gabbert's Fourteenth Amendment claims.The district court denied Gabbert's motion for leave toamend his complaint to include a state law claim under Cali-fornia Penal Code S 1524(c), the statute regulating the searchof lawyers or law offices. The district court declined to exer-cise supplemental jurisdiction over a civil claim based on aviolation of Cal. Penal Code S 1524, finding that it presenteda novel question of state law which would substantially pre-dominate over Gabbert's remaining Fourteenth Amendmentclaims.The defendants moved for summary judgment on Gabbert'sFourteenth Amendment claims. The district court grantedsummary judgment for Conn and Najera based on qualifiedimmunity and for Zoeller and Oppenheim based on absoluteimmunity.III. STANDARD OF REVIEWBoth a dismissal for failure to state a claim and a grant ofsummary judgment on the basis of qualified immunity in a 42U.S.C. S 1983 action are reviewed de novo. Crow Tribe ofIndians v. Racicot, 87 F.3d 1039, 1043 (9th Cir. 1996) (sum-mary judgment); Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995) (Fed. R. Civ. Proc. 12(b)(6)); Neely v.Feinstein, 50 F.3d 1502, 1507 (9th Cir. 1995) (qualifiedimmunity in S 1983 action). These same authorities teach thatwe must determine, viewing the evidence in the light mostfavorable to the non-moving party, whether there are any gen-uine issues of material fact and whether the district court cor-rectly applied the relevant substantive law. This court reviewsa denial of leave to amend a complaint for an abuse of discre-tion. Maljack Prods. v. GoodTimes Home Video Corp., 81F.3d 881, 888 (9th Cir. 1996).IV. ANALYSIS[1] "To sustain an action under section 1983, a plaintiffmust show (1) that the conduct complained of was committedby a person acting under color of state law; and (2) that theconduct deprived the plaintiff of a federal constitutional orstatutory right." Wood v. Ostrander, 879 F.2d 583, 587 (9thCir. 1989).[2] Absolute immunity, a total defense at the outset to acivil rights action, is afforded to those officials performingspecial functions that require independence and fearless per-formance. See Burns v. Reed,
500 U.S. 478, 484
-85 (1991).An official seeking absolute immunity from a S 1983 actionbears the burden of showing that such immunity is applied forthe function at issue. See id. at 486. There is a presumptionthat qualified rather than absolute immunity is generally suffi-cient to protect government officials. See id. Absolute immu-nity is given sparingly. See id.[3] The qualified immunity doctrine protects governmentofficials from civil liability under S 1983"insofar as theirconduct does not violate clearly established statutory or con-stitutional rights of which a reasonable person would haveknown." Harlow v. Fitzgerald,
457 U.S. 800, 818
(1982).Analysis of a qualified immunity claim involves three steps:(1) identifying the specific right allegedly violated; (2) deter-mining whether the right was so "clearly established" as toalert a reasonable officer to its constitutional parameters; and(3) determining whether a reasonable public officer couldhave believed that the particular conduct at issue was lawful.See Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996);Alexander v. City and County of San Francisco, 29 F.3d 1355,1363-64 (9th Cir. 1994).When the underlying facts are undisputed, the district courtmust decide whether a public officer is entitled to qualifiedimmunity "at the earliest possible point in the litigation." ActUp!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993)(interpreting Hunter v. Bryant,
502 U.S. 224, 227
-28 (1991)).A. FOURTEENTH AMENDMENT CLAIM1. Immunity of the Prosecutors a. Absolute ImmunityConn and Najera claim that absolute immunity protectsthem from liability for Gabbert's S 1983 claims. Prosecutorsare entitled to absolute immunity from suit underS 1983 forconduct "intimately associated with the judicial phase of thecriminal process." Imbler v. Pachtman,
424 U.S. 409
, 431(1976). The law affords absolute immunity to a prosecutor forperforming the functions of a prosecutor, rather than simplyfor having the status of prosecutor. See Buckley v. Fitzsim-mons,
509 U.S. 259, 273
(1993).[4] Prosecutors are entitled to absolute immunity for initiat-ing and pursuing prosecution. See Imbler,
424 U.S. at 431
.This immunity extends to prosecutorial conduct before grandjuries. See Burns,
500 U.S. at 490
n.6. Prosecutors are notprotected by absolute immunity, however, when they act asinvestigators rather than as advocates. See Buckley, 509 U.S.at 273. A prosecutor performing functions generally per-formed by detectives or police officers loses entitlement toabsolute immunity but is eligible for the qualified immunityusually accorded those actions. See id.[5] Gabbert claims Conn and Najera violated his constitu-tional rights by their timing of the service of the search war-rant and directing the second search. The district court foundthat Conn and Najera acted as investigators, not advocates, byparticipating or directing the pre-indictment gathering of evi-dence. The district court's determination in this regard is onsolid ground, as the prosecutors here performed activitiesmore associated with police functions: they served a searchwarrant upon Gabbert's client at her residence, directed apolice officer to obtain a search warrant for Gabbert, werepresent when the police officer served the warrant to Gabbert,introduced Gabbert to the special master, informed Gabbert ofthe need for a second search, were present for the secondsearch, and viewed Gabbert's documents during the search.Thus, the district court properly found that prosecutors Connand Najera were not entitled to absolute immunity for theiractions. b. Qualified ImmunityAlternatively, Conn and Najera claim they are entitled toqualified immunity. The threshold question in resolving sucha claim is whether the plaintiff has identified a specific rightallegedly violated by government actors. See Newell, 79 F.3dat 117. "Due process violations must be particularized beforethey can be subjected to the clearly established test." Id.(quoting Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995));Alexander v. County of Los Angeles, 64 F.3d 1315, 1319 (9thCir. 1995). Gabbert's claim is specific: the FourteenthAmendment protects his right to practice his profession with-out undue and unreasonable governmental interference.[6] The Fourteenth Amendment protects "the right of theindividual . . . to engage in any of the common occupationsof life." Board of Regents v. Roth,
408 U.S. 564, 572
(1972);see Wedges/Ledges of California, Inc. v. City of Phoenix, 24F.3d 56, 65 n.4 (9th Cir. 1994) ("[P]ursuit of an occupationor profession is a protected liberty interest."). Such a right isboth a liberty and property right protected from state depriva-tion or undue interference. See Keker v. Procunier, 398 F.Supp. 756, 760 (E.D. Cal. 1975) (citing Meyer v. Nebraska,
262 U.S. 390, 399
(1923)); see Greene v. McElroy, 360 U.S.474, 492 (1959) (right to hold specific private employmentand to follow chosen profession free from unreasonable gov-ernmental interference protected by Fifth Amendment); seealso In re Griffiths,
413 U.S. 717, 722
-27 (1973) (staterequirement of United States citizenship violates attorney'sright to practice law). Because the Fourteenth Amendmentprotects an individual's right to practice a profession freefrom undue and unreasonable state interference, Gabbert hasidentified a specific right allegedly violated. 2Having identified the specific right at issue, we turn towhether that right was clearly established at the time the pros-ecutors allegedly interfered with that right. See Anderson v.Creighton,
483 U.S. 635, 640
(1987). "If the controlling lawis not clearly established, a reasonable person would not beexpected to know how to structure his conduct in order toavoid liability." Romero v. Kitsap County, 931 F.2d 624, 628(9th Cir. 1991) (quoting Todd v. United States, 849 F.2d 365,368-69 (9th Cir. 1988)). The plaintiff bears the burden ofshowing that the right allegedly violated was clearly estab-lished. See Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir.1996).[7] A right is clearly established"[i]f the only reasonableconclusion from binding authority [was] that the disputedright existed." Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir.1997). "The contours of the right must be sufficiently clearthat [at the time the allegedly unlawful action is taken] a rea-sonable official would understand that what he is doing vio-lates that right." Mendoza v. Block, 27 F.3d 1357, 1361 (9thCir. 1994) (quoting Anderson,
483 U.S. at 640
). For a right tobe clearly established, "the very action in question" need not"ha[ve] previously been held unlawful"; instead, the"unlawfulness must be apparent" in light of pre-existing law.Anderson,
483 U.S. at 640
. "Thus, when the defendants' con-duct is so patently violative of the constitutional right that rea-sonable officials would know without guidance from thecourts that the action was unconstitutional, closely analogouspre-existing case law is not required to show that the law isclearly established." Mendoza, 27 F.3d at 1361 (quotingCasteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)); seeBacklund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985)("Certainly . . . [S 1983 plaintiffs] need not always producebinding precedent. . . . There may be cases of conduct so egre-gious that any reasonable person would have recognized aconstitutional violation.").[8] The unusual facts of this case preclude "the very actionin question" to be clearly established in our case law. Never-theless, long-standing precedent establishes the importance ofthe attorney-client relationship during a client's grand jurytestimony. A witness has an absolute duty to answer all ques-tions before a grand jury. See United States v. Mandujano,
425 U.S. 564, 581
(1976). This absolute duty is subject tolimitation: the witness is "free at every stage to interpose hisconstitutional privilege against self-incrimination. " See id. at584. To assist the witness in asserting this privilege, a witnesshas the right to consult with her attorney outside the grandjury room. Id. at 581. This right to assistance is clearly estab-lished in this and other circuits. United States v. Plache, 913F.2d 1375, 1380 (9th Cir. 1990) (witness has "a right to con-sult with an attorney waiting outside the grand jury room dur-ing the proceedings"); United States v. Schwimmer, 882 F.2d22, 27 (2d Cir. 1989) (same); In re Grand Jury Proceedings,859 F.2d 1021, 1024 (1st Cir. 1988) (same). The witness'sclearly established right to assistance, however, cannot beexercised if government officials unnecessarily interfere withan attorney's ability to provide that advice.[9] A constitutional right may be clearly established "bothby common sense and by precedent." Newell, 79 F.3d at 117.Both clearly establish that the right to practice a professionnecessarily includes the right to practice according to thehighest standards of that profession. There is no right morecentral to that notion than the right to maintain the privacyand freedom from intrusion essential to the attorney-clientrelationship. See Damron v. Herzog, 67 F.3d 211, 214 (9thCir. 1995); DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9thCir. 1985); see also Model Rules of Professional ConductRule 1.6. Common sense necessarily leads to the conclusionthat an attorney has the right to practice his profession in pri-vacy and freedom from unreasonable intrusion by "waitingoutside the grand jury room" during his client's testimony.Plache, 913 F.2d at 1380. Therefore, we hold that Gabberthad the clearly established right to practice law free fromundue and unreasonable governmental interference.The final step in a qualified immunity analysis is whethera reasonable official could have believed the conduct at issuewas lawful under that clearly established law. See Mendoza,27 F.3d at 1362. A defendant must show that a reasonableofficer could have believed that the conduct was lawful. SeeCollins, 110 F.3d at 1369. We decide whether the officials'actions were objectively reasonable under the facts and cir-cumstances, without regard to their underlying intent or moti-vation. See Graham v. Connor,
490 U.S. 386, 397
(1989).Here, two streams of events collided. The prosecutors werepoised with a search warrant for Gabbert's effects to be car-ried out by a special master pursuant to California procedure.Baker, as required by her grand jury subpoena, was presentand prepared to appear before the grand jury. The prosecutorswere in control of both events: they controlled the timing ofthe execution of the search warrant on Gabbert and his cli-ent's grand jury appearance. The only apparent reason to haveboth occur at the same time was the prosecutors' desire toprevent Gabbert from communicating with his client.[10] There was a clear and obvious path that, if followed,would have allowed the prosecutors to both execute thesearch warrant as well as permit Baker to appear before thegrand jury with Gabbert available for consultation. The prose-cutors could have simply delayed Baker's grand jury appear-ance while the special master searched Gabbert and his files.Baker would have had no right to be present when Gabbertwas searched and therefore could have been kept comfortablyout of harm's way. Alternatively, the prosecutors could havedelayed the search of Gabbert until his client was finished tes-tifying before the grand jury.[11] The prosecutors chose instead to pursue a path that putthese two events into direct conflict, executing the search war-rant on Gabbert at almost the exact time Baker was beinghaled into the grand jury room.3 The plain and intended resultwas to prevent Gabbert from consulting with Baker during hergrand jury appearance.4 These actions were not objectivelyreasonable, and thus the prosecutors are not protected by qual-ified immunity from answering Gabbert's Fourteenth Amend-ment claim.5[12] Our holding does not provide a basis for a privateattorney to resist legitimate criminal procedure and litigationdevices -- such as search warrants or discovery requests --in cases against the government. Nor does our holding trans-form every violation of a client's constitutional rights into acorresponding violation of an attorney's constitutional rights.Rather, our holding is narrow: a state government violates anattorney's Fourteenth Amendment rights when its officersunduly and unreasonably interfere with the attorney's right topractice his profession by preventing the attorney from offer-ing legal assistance to the client in the very matter and at thevery moment for which the lawyer was retained.2. Immunity of the DetectiveDetective Zoeller claims absolute immunity from Gabbert'sS 1983 claim for violating his Fourteenth Amendment rights.Zoeller relies on Coverdell v. Department of Social andHealth Servs., 834 F.2d 758 (9th Cir. 1987), for the proposi-tion that a police officer has absolute quasi-judicial immunityfrom liability when executing a search warrant. We do notreach this issue because we find that Zoeller is protected byqualified immunity. See Marks v. Clarke, 102 F.3d 1012,1024-25 (9th Cir. 1997); Ortiz v. Van Auken, 887 F.2d 1366,1370 (9th Cir. 1989).As discussed above, Gabbert had a clearly established rightto practice his profession free from undue and unreasonablegovernmental interference. Thus, our focus turns to whethera reasonable police officer could have believed this conductwas lawful.[13] We find Detective Zoeller's conduct objectively rea-sonable. The warrant at issue expressly stated that it could "beserved at any time of the day or night." Zoeller served thewarrant on Gabbert at the direction of Conn. Most impor-tantly, Zoeller had no control over the timing of the prosecu-tors' calling Baker to the grand jury room. Therefore, Zoelleris entitled to qualified immunity from Gabbert's FourteenthAmendment claim.3. Immunity of the Special Master[14] Special Master Oppenheim also claims absolute quasi-judicial immunity. Judicial immunity may be extended to offi-cials other than judges when "their judgments are functionallycomparable to those of judges -- that is, because they, too,exercise a discretionary judgment as part of their function."Antoine v. Byers & Anderson, Inc.,
508 U.S. 429, 436
(1993).We have extended absolute quasi-judicial immunity to specialmasters. See Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d1452, 1454-55 (9th Cir. 1993) (noting that a special master"clearly exercise[s] discretionary judgment as part of hisfunction").[15] Oppenheim exercised discretionary judgment as partof his function. California Penal Code S 1524(c)(1) expresslycalls upon the "judgment of the special master. " Moreover,S 1524 requires the special master to assess the relevance ofany items he examines and to determine whether the partyserved complied with the warrant. These "discretionaryjudgments" are functionally comparable to those a judgewould make in the absence of a special master. Antoine, 508U.S. at 436. Oppenheim therefore is entitled to absolute quasi-judicial immunity.6B. FOURTH AMENDMENT CLAIM1. Immunity of the ProsecutorsGabbert claims that deputy district attorneys Conn and Naj-era violated his Fourth Amendment right to be free fromunreasonable searches when they engaged in an impermissi-ble second search of his person and possessions without avalid warrant and failed to comply with California Penal CodeS 1524.For the reasons stated above, we reject the prosecutors'claim to absolute immunity. We must determine whether theprosecutors are entitled to qualified immunity.[16] Searches of attorneys and their offices, of course, areripe with potential for controversy. Conducted withoutrestraint, legitimate privileges and privacy expectations,including those of uninvolved third parties, can be violated.For this and other sensible policy reasons, California lawwisely requires that such searches be carried out by specialmasters and that disputes over what may or may not be seizedbe taken promptly before a trial judge for resolution. Cal.Penal Code S 1524; see People v. Superior Court, 37 Cal.App. 4th 1757, 44 Cal. Rptr. 2d 734 (1995); Geilim v. Supe-rior Court, 234 Cal. App. 3d 166, 285 Cal. Rptr. 602 (1991).[17] We cannot accept, however, Gabbert's claim that theprosecutors' alleged violation of Cal. Penal CodeS 1524 isactionable under 42 U.S.C. S 1983. State law cannot form thebasis of a S 1983 claim unless the violation of that law alsoresults in a constitutional or federal law violation. See Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6 (1st Cir. 1997); Long v.Norris, 929 F.2d 1111, 1114 (6th Cir. 1991); Barry v. Fowler,902 F.2d 770, 772 (9th Cir. 1990). Therefore, the districtcourt properly rejected Gabbert's S 1983 claim based on aviolation of state law.Gabbert also alleges, however, that the prosecutors violatedhis Fourth Amendment rights by searching or participating ina search of his personal effects without a valid or lawful war-rant.We agree with the district court that the search warrantauthorizing Special Master Oppenheim to search Gabbert wasvalid. See United States v. Cannon, 29 F.3d 472, 478 (9th Cir.1994) (warrant is valid if issuing judge had substantial basisto conclude affidavit establishes probable cause); Forster v.County of Santa Barbara, 896 F.2d 1146, 1148 (9th Cir.1990) (S 1983 defendant entitled to qualified immunity evenif the affidavit contained intentionally or recklessly falsestatements if the affidavit contained sufficient content to sup-port probable cause). We disagree with the district court thatthe valid search warrant authorized the prosecutors to directthe second search of Gabbert.[18] Although a state law violation is not actionable in aS 1983 claim, federal courts must necessarily consider thelawfulness of a search under state law. See Pierce v. Multno-mah County, Or., 76 F.3d 1032, 1038 (9th Cir.) (state lawdetermines reasonableness of arrest in S 1983 claim), cert.denied, 117 S. Ct. 506 (1996); United States v. Mota, 982F.2d 1384, 1387 (9th Cir. 1993) (reasonableness of arrestdetermined by referring to state law in a criminal case);United States v. Wanless, 882 F.2d 1459, 1464 (9th Cir. 1989)(federal law may require searches and seizures be conductedin accordance with state law). Also, "a violation of state . . .law can serve as the basis of a section 1983 action`[w]herethe violation of state law causes the deprivation of rights pro-tected by the Constitution.' " Draper v. Coombs, 792 F.2d915, 921 (9th Cir. 1986) (quoting Wirth v. Surles, 562 F.2d319, 322 (4th Cir. 1977)). Therefore, we will look to Cal.Penal Code S 1524 and the face of the warrant to determinewhether the search warrant authorized the second search ofGabbert.[19] The California law governing the search of attorneysfor documentary evidence permits only the special master toconduct the search. Cal. Penal Code S 1524(e). The statuteforbids the party seeking or serving the warrant from partici-pating in the search except upon the agreement of the partybeing searched. See id. The prosecutors knew of the statute'srequirements and thus directed Detective Zoeller to obtain asearch warrant pursuant to that statute. The search warrantstated that Detective Zoeller would search Gabbert "throughSpecial Master Elliot Oppenheim." Neither California law northe face of the search warrant authorized the prosecutors toparticipate in the second search of Gabbert without his con-sent. Thus, the second search was warrantless.[20] The prosecutors argue that the second search was notwarrantless because it was a continuation of the first searchunder a valid warrant. It is true that courts have allowed sec-ond searches under the same warrant, as long as the subse-quent search could be considered a continuation of the firstsearch. See United States v. Kaplan, 895 F.2d 618, 623 (9thCir. 1990); United States v. Carter, 854 F.2d 1102, 1107 (8thCir. 1988). In both those cases, however, the same officerconducted the first search and returned shortly to retrieveitems listed in the search warrant. See Kaplan, 895 F.2d at623; Carter, 854 F.2d at 1105. California law makes clear thatonly the special master may execute a search of this type.Here, Detective Zoeller conducted the second search at thedirection of the prosecutors. Nor did Gabbert consent to thesecond search by someone other than the special master. Asearch conducted in such flagrant disregard of statutory normsand the plain requirements of the warrant itself cannot be acontinuation of the first search and thus becomes an imper-missible general search. See United States v. Mittelman, 999F.2d 440, 442-43 (9th Cir. 1993).[21] Qualified immunity from civil liability can extend toofficials who perform unlawful warrantless searches. See Bar-low v. Ground, 943 F.2d 1132, 1139 (9th Cir. 1991). The rightto be free from warrantless searches absent an applicableexception to the warrant requirement is clearly established.See California v. Acevedo,
500 U.S. 565, 569
(1991); UnitedStates v. Rambo, 74 F.3d 948, 953 (9th Cir.), cert. denied, 117S. Ct. 72 (1996). Thus, "[t]he relevant inquiry is whether areasonable government official could have believed his con-duct was lawful, in light of clearly established law and theinformation he possessed." Thorsted v. Kelly, 858 F.2d 571,573 (9th Cir. 1988).[22] Conn was clearly aware that California law permittedonly a special master to search Gabbert. He directed DetectiveZoeller to add to the existing affidavit and to secure a searchwarrant for Gabbert's person and effects. Both the affidavitand the search warrant stated that the search would be con-ducted by Special Master Oppenheim pursuant to S 1524. Inviewing the evidence in the light most favorable to the non-moving party, see Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9thCir. 1996), the record shows that Conn directed Zoeller tosearch Gabbert after the initial search by the special master.Conn stood close by as Detective Zoeller conducted this war-rantless second search. Conn's conduct was therefore notobjectively reasonable, and he is not entitled to qualifiedimmunity from Gabbert's Fourth Amendment claim.[23] Although a reasonable prosecutor in Najera's positionmight also know that the second search was unlawful, the evi-dence does not show that she was sufficiently involved in thesecond search to be liable under S 1983. She neither directedthe detective to obtain the search warrant nor instructed himto conduct the warrantless second search. Her mere presenceduring the second search does not arise to a violation of eitherfederal or state law. We therefore affirm the district court'sdismissal of Gabbert's Fourth Amendment claim against Naj-era.2. Immunity of the Detective[24] Gabbert asserts similar Fourth Amendment violationsagainst Detective Zoeller. A police officer does not enjoyabsolute immunity from suit for conducting a search but maybe protected by qualified immunity. See Liston v. County ofRiverside, 120 F.3d 965, 975 (9th Cir. 1997). We conclude,for the reasons stated above, that the second search of Gabbertconducted by Detective Zoeller was not authorized by theexisting warrant and that Gabbert had a clearly establishedright to be free from warrantless searches.[25] The evidence compels the conclusion that a reasonableofficer in Zoeller's situation could not have believed that hisconduct was lawful. In his affidavit, Zoeller requested theappointment of a special master pursuant to S 1524 "to assistin the search of Mr. Gabbert's documents." He stated that thisfulfilled the requirements of the statute. The search warrantissued by the magistrate authorized the special master, notZoeller, to conduct the search. Clearly, Zoeller knew of theexistence of S 1524 and its special master requirement. A rea-sonable officer would know, not only the existence of the law,but also its general requirements. Detective Zoeller cannotescape liability from Gabbert's claim by asserting ignoranceof the substance of the governing law. Therefore, a reasonabledetective would know, from the applicable law and from theface of the search warrant, that he was not authorized tosearch Gabbert. We conclude that Zoeller does not have quali-fied immunity from Gabbert's Fourth Amendment claim.3. Immunity of the Special Master[26] Gabbert claims that Special Master Oppenheim vio-lated his Fourth Amendment rights by conducting an over-broad search. Oppenheim enjoys absolute immunity for allactivities performed pursuant to his role as special master. SeeAtkinson-Baker & Assocs., 7 F.3d at 1454-55. Although weare mystified by Oppenheim's apparent disregard for the plainrequirements of Cal. Penal Code S 1524, he was in fact actingpursuant to a warrant and at least generally doing those thingsauthorized by it. Moreover, the things he searched were thosethat might have legitimately contained the correspondencespecified in the warrant. See United States v. Grandstaff, 813F.2d 1353, 1358 (9th Cir. 1987). We therefore affirm the dis-trict court's dismissal of this claim against Oppenheim.C. SUPPLEMENTAL JURISDICTION OF THE DISTRICT COURTBecause the district court's denial of Gabbert's motion forleave to amend his complaint to include a cause of actionunder Cal. Penal Code S 1524 was based, in part, on its dis-missal of Gabbert's Fourth Amendment claims, we assume,without deciding the issue, that the district court will want torevisit this ruling.V. CONCLUSIONIn the procedural posture this case comes to us, we are nec-essarily limited. Only the fullness of discovery and perhaps atrial on the merits can fully explore Gabbert's claims and thedefendants' defenses. Defendants may be able to establishthat, whatever they did, it did not materially affect Gabbert'srights. We can only say that Gabbert's claims merit full expo-sition and defendants' defenses complete exploration.The order granting summary judgment to prosecutors Connand Najera on Gabbert's Fourteenth Amendment claims isREVERSED. The order granting summary judgment toDetective Zoeller and Special Master Oppenheim on Gab-bert's Fourteenth Amendment claims is AFFIRMED. The dis-missal of Gabbert's Fourth Amendment claims against Connand Zoeller is REVERSED. The dismissal of Gabbert'sFourth Amendment claims against Najera and Oppenheim isAFFIRMED.The case is remanded to the district court for further pro-ceedings in accordance with this opinion. Each party to bearits own costs. The panel retains jurisdiction over furtherappeals of this matter. the end
___________________________FOOTNOTES 1 The events at issue in this appeal occurred during jury deliberations ofthe first Menendez trial, which ultimately resulted in two hung juries.2 The prosecutors seek to characterize Gabbert's claim as one for lostprofessional opportunities or injury to his professional reputation. Injuryto a professional reputation is not a liberty interest protected by the Four-teenth Amendment. See Siegert v. Gilley,
500 U.S. 226, 232
(1991); Paulv. Davis,
424 U.S. 693, 708
-09 (1976). Gabbert's claim is that the prose-cutors' conduct directly interfered with his ability to practice his profes-sion. Specifically, he contends that the prosecutors' conduct preventedhim from freely rendering legal assistance to his client whenever shechose to seek his advice regarding her grand jury testimony. Thus, thosecases failing to find a liberty interest in a loss of reputation are inapposite.3 We have had occasion to describe the "model of government sensitiv-ity to the special privacy interests that are implicated when a law firm'sfiles must be searched" pursuant to a warrant. See In re Grand Jury Sub-poenas Dated December 10, 1987, 926 F.2d 847, 858 (9th Cir. 1991). From the time the warrants were requested, the officers took con- siderable care in minimizing the intrusion into the privacy of the Doe Four law firm. The Government intentionally timed the search for a time of day when it would least disrupt the law firm's activities. The Government also suggested to the issuing court that it impose any special restrictions on the execution of the warrants it deemed appropriate in light of the facts that the files in a law office would be searched. The execution of the warrants, likewise, shows considerable concern for the privacy interests of the law firm and its clients. At the main office, the agents delayed the search while law firm attorneys negotiated with the United States Attorney as to the best way to meet the Government's need for these documents. An agreement was reached that the officers would not conduct a search of the files. Instead, law firm personnel searched the files and identified the relevant documents. These documents were sealed and turned over to the district court. At the satellite office, the officers seized the files bearing the names of the persons identified in the warrant, without reviewing the contents. These documents were sealed and delivered to the district court. As the result of these precautions, the privacy interests of the persons subject to the search were fully protected.Id. (emphasis added). Although we do not prescribe a specific method forexecuting a search warrant on a lawyer or law office, we note that prose-cutors Conn and Najera miserably failed to achieve the cooperative atti-tude exhibited in this model.4 The prosecutors' counsel conceded at oral argument that the only rea-son for the timing of the search was "to take advantage" of this situation.5 We are unpersuaded by the prosecutors' argument that their actionswere objectively reasonable because they had no reason to know thatBaker did not, in fact, consult with Gabbert when she left the grand juryroom. It is true that, upon Baker's return to the grand jury room, sheinvoked her privilege against self-incrimination on "the advice ofcounsel." Baker's prepared statement, however, does not make the prose-cutors' actions objectively reasonable. At best, the prosecutors had toknow that Gabbert was distracted from giving his full attention and adviceto Baker. This distraction prevented Gabbert from practicing his profes-sion "according to the highest standards." Keker, 398 F. Supp. at 761.6 Although the law affords absolute immunity to Special Master Oppen-heim, it should be noted that he violated several provisions of the Califor-nia statute regulating the execution of a search of an attorney. See Cal.Penal Code S 1524. Additionally, his decision that Gabbert's files con-tained no privileged material because the documents were not stamped ormarked "privileged" is contrary to even the most basic understanding ofthe attorney-client privilege.