MAGNO J. ORTEGA, M.D.,
Plaintiff-Appellee,                                   No. 97-15073

v.                                                    D.C. No.
CV-82-4045-MHP
DENNIS MICHAEL O'CONNOR, M.D.
and RICHARD FRIDAY,                                   OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding

Argued and Submitted
February 9, 1998--San Francisco, California

Filed June 26, 1998

Before: Dorothy W. Nelson, Stephen Reinhardt, and
Charles Wiggins, Circuit Judges.

Opinion by Judge Reinhardt


_________________________________________________________________

OPINION

REINHARDT, Circuit Judge:

In 1981, defendants Dr. Dennis Michael O'Connor and
Richard Friday, who were then officials at California's Napa
State Hospital, directed an extensive inquiry that they contend
was a lawful administrative investigation of Dr. Magno Orte-
ga's management practices. The investigation led to a highly
intrusive search of Dr. Ortega's private office. . . Dr.
Ortega, a longtime employee of the Hospital, questioned the
defendants' motives, took exception to some of their more
intrusive investigatory tactics. . . and ultimately filed a timely
action, claiming violations of his civil rights. Some sixteen
years later, after a lengthy series of rulings and appeals, Dr.
Ortega prevailed, obtaining a jury verdict holding the defen-
dants liable under 42 U.S.C. S 1983 for conducting an unrea-
sonable search and seizure.

I

Dr. Magno Ortega, a licensed physician and psychiatrist,
held the position of Chief of Professional Education at Napa
State Hospital from 1964 to late 1981. In that capacity, he
supervised the training of the resident physicians specializing
in psychiatry. During 1981, two events occurred that
prompted Hospital officials to commence an investigation
into his management practices. That investigation led to the
searches and seizures that are the subject of this case.

First, in March 1981, at the suggestion of several residents,
Dr. Ortega purchased a new computer for use in the Hospi-
tal's residency training program. The residents donated
money to cover about half the cost and Dr. Ortega paid the
rest. About a month later, when Dr. Ortega asked Dr.
O'Connor, the Hospital's Executive Director, to sign some
thank-you letters for persons who had made donations for the
computer and for subpurchase orders to obtain accessories for
the computer, Dr. O'Connor became concerned about whether
the computer had been properly donated to the Hospital.

Second, a couple of months after the purchase of the com-
puter, Dr. Ortega placed Dr. Richard Vaughan, a resident at
the Hospital, on involuntary leave for failing to report for his
scheduled rotation. In response to Dr. Ortega's actions, Dr.
Vaughan told Personnel Director Dorothy Owen that he
believed that Dr. Ortega had placed him on leave because he
had not contributed to the purchase of the computer and
because he had urged other residents to ask for their money
back. On July 29, 1981, Ms. Owen told Dr. O'Connor about
Dr. Vaughan's complaint.

Later that day, Dr. O'Connor wrote a memorandum to Mr.
Richard Friday, the Hospital Administrator, asking him to ini-
tiate an investigation into Dr. Ortega's handling of these
issues. In the memorandum, Dr. O'Connor cited two reasons
for the investigation: (1) the circumstances surrounding Dr.
Ortega's acquisition of the computer; and (2) the complaint of
Dr. Vaughan. The next day, Dr. O'Connor authorized Friday
to select an investigative team, and granted the investigative
team broad authority, including the right to search Dr. Orte-
ga's office, despite the fact that the Hospital had no policy
that allowed Hospital staff to enter private offices of employ-
ees without their consent. . .

On Friday, August 14, Dr. O'Connor sent a letter to Dr.
Ortega informing him that the investigation had not been
completed and that he had been placed on administrative
leave with pay commencing on Monday, August 17. Dr.
Ortega was told not to return to the Hospital until the investi-
gation was completed. . .

Sometime  -- but certainly well before the last week of August --
the Hospital's investigators commenced a series of searches
of Dr. Ortega's office without a warrant and without his
knowledge or consent. . . Friday later claimed "the search was initiated
because he `wanted to make sure that we had our state prop-
erty identified, and in order to provide Dr. Ortega with his
property and get what we had out of there, in order to make
sure our resident's files were protected, and that sort of
stuff.' " O'Connor v. Ortega, 480 U.S. 709, 727  (1985) (plu-
rality opinion) (quoting Friday's deposition). . .

The search was extremely thorough and highly intrusive.
The investigative team entered Dr. Ortega's office on several
occasions. . .

At the close of its investigation, the investigative team filed
a report recommending that Dr. Ortega be fired. The Hospital
fired him on September 22, 1981, and the State Personnel
Board subsequently upheld the termination. . .

Shortly thereafter, Dr. Ortega, filed a complaint under 42
U.S.C. S 1983 against Dr. O'Connor and Friday, 1 alleging that
they had violated his Fourth Amendment right to be free from
unreasonable search and seizure. Dr. Ortega claimed that the
defendants' intrusions constituted an unreasonable
and indiscriminate search -- essentially a fishing expedition
-- aimed at discovering whether there was any material of
any kind in his possession that might be used against him at
an administrative proceeding. The defendants denied these
allegations and asserted that the search was simply part of the
established Hospital procedure to inventory property within
the offices of departing, terminated, or separated employees.

. . .the Hospital had no policy of conducting inventories of the
offices of employees on administrative leave, the search could
not have been conducted pursuant to any established proce-
dure. Thus, we concluded that, given the unwarranted intru-
sion, the defendants had violated Dr. Ortega's Fourth
Amendment rights. Ortega v. O'Connor, 764 F.2d 703 (9th
Cir. 1985). Certiorari was granted. (1985).

Before the Supreme Court, the defendants retreated from
their position that an established policy justified their search
and, instead, argued more generally that the search was
"required to secure the state property in Dr. Ortega's office."
O'Connor v. Ortega, 480 U.S. 709, 727  (1987) (plurality
opinion) (hereinafter "O'Connor"). In a four-one-four deci-
sion, the Court agreed unanimously with our holding that Dr.
Ortega had a reasonable expectation of privacy in his office,
desk, and file cabinets. . .

In 1992, during a jury trial in which Dr. Ortega proceeded
pro se, the district court granted a directed verdict for the
defendants at the close of evidence. Dr. Ortega re-hired his
lawyer and appealed. We once again reversed the district
court, holding that it had improperly excluded most of Orte-
ga's witnesses as a sanction for failing to serve a witness list
on opposing counsel. Ortega v. O'Connor, 50 F.3d 778 (9th
Cir. 1995). We remanded for a new trial.2 

This time on remand,3 the defendants retreated even from
their general assertion that they invaded Dr. Ortega's office
because of their need to secure state property, and argued still
more generally that "the charged improprieties in[Dr.] Orte-
ga's management as a supervisor of the Department of Profes-
sional Education," . . . justified the search. . .

Dr. Ortega, on the other hand, continued to maintain
that the defendants' alleged justifications were
pretextual "cover-ups" -- false post-hoc rationales for con-
ducting a search that, in reality, was not tied to any particular
allegation of wrongdoing or any expectation of finding any
specific evidence. He persisted in his assertion that the search
constituted an unrestrained and indiscriminate effort to dis-
cover any material that could be of use to the Hospital should
it decide to initiate administrative proceedings against him on
any basis. . .

. . . The court then conducted a jury trial, first on
liability and subsequently on damages. The jury found for Dr.
Ortega in all respects. It decided that each defendant had vio-
lated his constitutional rights by conducting an unconstitu-
tional search and an unconstitutional seizure, and it awarded
Dr. Ortega $376,000 against both defendants in compensatory
damages, and $25,000 against Dr. O'Connor and $35,000
against Mr. Friday in punitive damages.

The defendants appeal. While they raise several issues,
only two merit our close consideration: (1) whether the defen-
dants were erroneously deprived of their qualified immunity
defense; and (2) whether the district court erred in ruling as
a matter of law that the seizure of the Sutton materials was
unreasonable. . . We now turn to those two issues.

(1) To defeat a claim of qualified immunity, the plaintiff
must show that "the law was clearly established " at the time
of the violation of the plaintiff's statutory or constitutional
right, such that "a reasonably competent public official should
[have known he was violating] the law governing his
conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818 -819 (1982).6
"Determining whether a public official is entitled to qualified
immunity `requires a two-part inquiry: (1) Was the law gov-
erning the state official's conduct clearly established? (2)
Under that law could a reasonable state official believe the
conduct lawful?' " Liston v. County of Riverside, 120 F.3d
965, 975 (9th Cir. 1997) (quoting Act Up!/Portland v. Bagley,
988 F.2d 868, 871-72 (9th Cir. 1993)). Courts should decide
issues of qualified immunity as early in the proceedings as
possible, but when the answer depends on genuinely disputed
issues of material fact, the court must submit the fact-related
issues to the jury. See Liston, 120 F.3d at 975; Act Up!/
Portland, 988 F.2d at 873.

In the district court, following the second remand, the
defendants moved for summary judgment on the merits with-
out raising qualified immunity,7 but later argued in their "trial
brief" that they were entitled to such immunity. 8 The defen-
dants argued in two perfunctory sentences that they could rea-
sonably have believed that they could search Dr. Ortega's
office because prior to the Supreme Court's opinion in this
case, the law governing office searches was not clearly
established.9 Dr. Ortega, on the other hand, asserted that under
the facts that he would establish at trial -- i.e., that no inven-
tory of state property was ever needed or made, although that
was the excuse repeatedly offered for the defendants' actions,
and that the true purpose of the search was to rummage
through the office in the hopes of discovering some unspeci-
fied evidence of any kind that might serve as the basis for
charges that could be brought against him -- the unreason-
ableness of both the search's inception and scope would have
been apparent to any reasonable public official. He also
argued that the seizure was unreasonable for the same reasons
 -- and that the unreasonableness of this conduct would have
been evident to any reasonable person. If Dr. Ortega's 
version of the facts was true, the defendants clearly were not
entitled to qualified immunity. . .

(2) Although the district court declared that it would not
instruct the jury on qualified immunity, the plaintiff and the
defendants jointly proposed to the district court, and the court
accepted, a jury instruction that applied a "reasonableness"
test not, as the district court had suggested, to the search itself,
but instead to the defendants' beliefs regarding the search.
More important, that instruction stated that the reasonableness
inquiry as to public officials' beliefs is determined under an
objective standard -- whether a reasonable officer would
have believed he had a reasonable basis for the search. The
instruction, as it was read to the jury, provided as follows:

        [The Defendants] contend that any actions they
       took relative to the search of the Plaintiff's office
       were justified by their reasonable belief that these
       actions were permitted or required and, therefore,
       were lawful.

        . . . .

        If a Defendant reasonably believed that a search or
       seizure was lawful, and acted on the basis of that
       belief, then his reasonable belief would constitute a
       complete defense to the Plaintiff's claim even
       though, in fact, the search or seizure was not lawful.
       Put another way, even if you find that a Defendant
       violated Plaintiff's constitutional rights by an unlaw-
       ful search or seizure the Defendant cannot be liable
       if he reasonably believed at the time he acted that his
       actions were in accordance with the law.

        But keep in mind that this reasonableness inquiry
       is an objective one. [The question is whether a ] rea-
       sonable officer under those same circumstances
       would believe that he had a basis, a reasonable basis
       for searching consistent again with these instruc-
       tions.

[4]The instruction, in fact, provided a classic . . .instruction.
An unlawfulrendered search and seizure is not permissible under the 
Fourth Amendment -- in a S 1983 context or otherwise -- when the 
state officials could"reasonably" have believed that their search was
"reasonable." Rather, the Fourth Amendment, absent the issue
of qualified immunity, prohibits all searches that are objec-
tively "unreasonable," regardless of whether the officials
could reasonably have believed the search was reasonable.
Hammer v. Gross, 932 F.2d 842, 849-50 (9th Cir. 1991) (en
banc). And violations of this standard, absent the issue of
qualified immunity, may provide the legal basis for damages
in S 1983 suits. Here, the district court's "extra" reasonable-
ness test, which the parties both requested in the jointly pro-
posed jury instructions, constituted an appropriate and proper
instruction to the jury on the second prong of the defendants'
qualified immunity defense -- whether a reasonable state
official could have believed his conduct was lawful -- the
prong as to which the existence of factual disputes requires
the jury's determination. Id. at 850; see also Ram v. Rubin,
118 F.3d at 1306, 1310 (9th Cir. 1997), cert. denied, 118 S.
Ct. 6429 (1998); Act Up!/Portland, 988 F.2d at 868; Fifth Cir-
cuit Pattern Jury Instructions (Civil) S 10.1 (West 1997). In
the end, there was simply no error as to the second prong of
the instruction -- the part relating to a reasonable officials'
belief that the actions were consistent with established law.10
[4] The instructions also set forth the substantive Fourth
Amendment law, as required by the first prong of the quali-
fied immunity standard. Accordingly, the only actual question
on appeal as to the qualified immunity issue is whether the
substantive law that the court set forth in the jury instructions
was correct and whether is was clearly established in 1981. If
it was, then there was no error at all in the "qualified
immunity" instructions, despite the fact that the district court
did not identify them as pertaining to that particular defense.
The court instructed the jury that:

        The Fourth Amendment to the Constitution, again,
       protects the rights of people to be secure in their per-
       sons, houses, paper effects against unreasonable
       searches and seizure.

        . . . .

        . . . You are instructed as a matter of law that
       Plaintiff has a reasonable -- Plaintiff, meaning Dr.
       Ortega in this case, had a reasonable expectation of
       privacy in his office, including his desk and file cabi-
       nets.

        Determining the reasonableness of any search
       involves a two-fold inquiry. First, one must consider
       was the action justified at its inception? Second, one
       must determine whether the search actually con-
       ducted was reasonably related in scope to the cir-
       cumstances which justify the search in the first
       place.

        The search of a private office will be permissible
       in scope when the measures adopted are reasonably
       related to the objectives of the search and not exces-
       sively intrusive in light of the nature of the miscon-
       duct.

        If you find that the search of the Plaintiff's office
       was not motivated by a legitimate work-related need,
       but was merely an investigatory search to discover
       evidence that could be used against the Plaintiff, you
       may consider that as evidence that the search was
       unreasonable. . .

[5] The Supreme Court has explained that a right is clearly
established if

       the contours of the right [are] sufficiently clear that
       a reasonable official would understand that what he
       is doing violates that right. This is not to say that an
       official action is protected by qualified immunity
       unless the very action in question has previously
       been held unlawful, [citations omitted]; but it is to
       say that in the light of pre-existing law the unlawful-
       ness must be apparent.

[5] . . .

[6] First, it was clearly established in 1981 that, in the
absence of an accepted practice or regulation to the contrary,
government employees such as Dr. Ortega had a reasonable
expectation of privacy in their private offices, desks, and file
cabinets, thereby triggering the protections of the Fourth
Amendment with regard to searches and seizures. As early as
the mid-60's the Supreme Court considered it settled law that
the Fourth Amendment protects a person's property when he
places it in "his office," and that when "he puts something in
his filing cabinet [or] in his desk drawer, . . . he has the right
to know it will be secure from an unreasonable search or an
unreasonable seizure." United States v. Hoffa, 385 U.S. 293,
301 (1966).

The Court, of course, memorialized the principle
that this rule applies with equal force to government employ-
ees in the O'Connor case, but earlier holdings by the circuit
courts had made the point clear well before 1981. Indeed, the
O'Connor plurality itself cited three pre-1981 on-point circuit
court holdings for the proposition that Dr. Ortega "had a rea-
sonable expectation of privacy at least in his desk and file
cabinets. . . ." 

 (plurality opinion) (citingGillard v. Schmidt, 579 F.2d 825, 829 (3rd Cir. 1978); UnitedStates v. Speights, 557 F.2d 362 (3rd Cir. 1978); United Statesv. Blok, 188 F.3d 1029 (D.C. Cir. 1951)); see also UnitedStates v. Nasser, 476 F.2d 1111, 1123 (7th Cir. 1973) (hold-ing that government employee had a right to privacy in hisprivate office). No circuit as of 1981 had held to the contrary. See Kirkpatrick, 803 F.2d at 490 (stating that when theSupreme Court would adopt lower courts' decisions, a rightis more clearly established).[7] Next, it was clearly established in 1981 that warrantlesssearches and seizures subject to the Fourth Amendment hadto comport at least with the Amendment's long establishedminimum requirement that they be" reasonable under the circumstances. . ."

[8]. . .

[9] Furthermore, because the jury found in Dr. Ortega's
favor, we must assume that it accepted his version of the
facts, which was supported by substantial evidence -- i.e., (1)
that the defendants, under the pretense of conducting an
"inventory" of state property in order to separate personal
from official materials, conducted instead a purely indiscrimi-
nate fishing expedition through his most personal belongings
in hopes of discovering some evidence that might be useful at
an adversary administrative hearing; (2) that the repeated
intrusions and examinations of Dr. Ortega's private posses-
sions, including his purely personal belongings, clearly
exceeded the scope of a reasonable work-related search; (3)
that the defendants retained all of the property that had been
in his office, both personal and official, in one undivided
mass; and (4) that when their first explanation was exposed as
false, the defendants then offered other equally untruthful
rationales for their conduct. A reasonable official in the defen-
dants' position could not have believed that a search and sei-
zure conducted under the circumstances and in the manner
described by Dr. Ortega was reasonably work related or other-
wise consistent with established law. . . 


[10] We think it important initially to emphasize that . . .
as ChiefJustice Burger explained:

       [T]ruly private papers or communications, such as a
       personal diary or family correspondence, . . . lie at
       the core of First and Fourth Amendment interests.

        . . . The papers in [these areas] are of the most pri-
       vate nature, enjoying the highest status under our
       law. Mr. Justice Brennan recently put it this way:
       "Personal letters constitute an integral aspect of a
       person's private enclave." Fisher v. United States,
       425 U.S. 391, 427   (1976) (concurring in judgment).
       An individual's papers, he said, are "an extension of
       his person." Id. at 420. Mr. Justice Marshall made
       the same point: "Diaries and personal letters that
       record only their author's personal thoughts lie at the
       heart of our sense of privacy." Couch v. United
       States, 409 U.S. 322, 350  (1973) (dissenting opin-
       ion). . . .

        One point emerges clearly: [Such papers] involve
       the most fundamental First and Fourth Amendment
       interests. . . . Indeed, where papers or books are the
       subject of a government intrusion, our cases uni-
       formly hold that the Fourth Amendment prohibition
       against a general search [forbids an] "indiscriminate
       sweep . . ." [of such articles]. Stanford v. Texas, 379
       U.S. 476, 486 (1965). . .

[11]. . .

[12] As explained earlier, the Supreme Court in O'Connor
unanimously reaffirmed that a government employee such as
Dr. Ortega with a private office has a "reasonable expectation
of privacy in at least his desk and his file cabinets." 490 U.S.
at 718-19 (plurality opinion); see also id. at 729 (Scalia, J.,
concurring); id. at 741 (Blackmun, J., dissenting). Thus, the
question is whether the search . . . was reasonable under the all 
of the circumstances,assuming arguendo that such was the purpose of 
the search. This issue turns on the two-part Terry inquiry described
above: "first, `whether the . . . action was justified at its incep-
tion; second, . . . whether the search as actually conducted
`was reasonably related in scope to the circumstances which
justified the interference in the first place.'  " Id. at 726 (quot-
ing Terry, 392 U.S. at 20). In the context of a seizure of work-
related items, the Court has explained:

       a search of an employee's office by a supervisor will
       be justified at its inception where there are reason-
       able grounds for suspecting that the search will turn
       up evidence that the employee is guilty of work-
       related misconduct, or that the search is necessary
       for a noninvestigatory work-related purpose such as
       to retrieve a needed file. . . . The search will be per-
       missible in its scope when the measures adopted are
       reasonably related to the objectives of the search and
       not excessively intrusive in light of . . . nature of the
       [misconduct]. . . 

[13] The defendants lacked such grounds. . . .was far too vague and
unsubstantiated to serve as a basis for reasonable suspicion
warranting any search of an employee's private office, let
alone so intrusive a search and seizure of his most personal
possessions.18 "Reasonableness " must be viewed in the con-
text of the nature of the intrusion involved.

[14] We need not rest our decision solely on this ground,
however, for even if the evidence were sufficient to warrant
reasonable suspicion necessary for such a search. . . The search
was, at best, a general and unbounded pursuit of anything that might
tend to indicate any sort of malfeasance -- a search that is
almost by definition, unreasonable. See Stanford, 379 U.S. at
486 (holding that the "history" and the "meaning" of the
Fourth Amendment mandate that a warrant allowing an
"indiscriminate sweep" by the government through a person's
"books, records, . . . pictures, recordings, and other written
instruments . . . is constitutionally intolerable") (internal quo-
tation omitted).

Indeed, the indiscriminate search conducted by the defen-
dants stands in stark contrast to all of the cases postdating
Terry in which a supervisor's search of an area set aside for
an employee's private use has been upheld -- and even to
some in which the search has been held unconstitutional. . . 
The defendants, conversely, had no particular evidence, or even
type of evidence, in mind when they allegedly searched Dr.
Ortega's office for evidence . . . 


. . .we reject the proposition that government employers are allowed
to search their employees' private offices, invade "core [ ]
First and Fourth Amendment interests," Nixon, 433 U.S. at
529 n.27 (Burger, J., dissenting). . . Nor,
equally important, may such a search be conducted in the
absence of specific reason to suspect that particular evidence
of misconduct exists and will be found as a result of the
search. . . (the) court must balance "the governmental interest
which allegedly justifies the official intrusion " against the
strength of the "constitutionally protected interests of the pri-
vate citizen"); Gillard, 579 F.2d at 826-29 (holding that supe-
rior's search through personal items in employee's desk was
unconstitutional even when a particular item was sought).
Indeed, given that personal letters and mementos rest at the
core of the right to privacy and "enjoy[  ] the highest status
under our law," Nixon, 433 U.S. at 530, we seriously question
whether so egregious an invasion of privacy would ever be
justified by bare, unsubstantiated allegations . . .

. . that are expressly denied by the accused employee.
There are far better and more productive ways of investigat-
ing such allegations without intruding unduly on constitution-
ally protected rights. . . In any event, any search
of private areas for evidence of such activities must at a mini-
mum be based on a specific reason to suspect that particular
evidence exists and that it will be found in the place to be
searched; moreover, such a search must be carefully limited
in scope, not only because of an historic respect for funda-
mental privacy but because of the need to insure that the
search will not be "excessively intrusive." O'Connor, 480
U.S. at 726 (plurality opinion); accord Schowengerdt, 823
F.2d at 1336.

The rule we apply in this case is not, contrary to the defen-
dants' assertion, a probable cause rule; it simply reflects a
proper definition of what constitutes an unreasonable intru-
sion under all the circumstances. Because no reasonable offi-
cial in the defendants' position would have believed that a
search based on the skeletal and stale allegations . . .

. . .was permissible under the Fourth Amendment or that any such search
could be conducted in the absence of a reasonable suspicion that
particular evidence would be discovered, the district court did not err
in granting relief to Dr. Ortega on that issue by way of partial
summary judgment.19

[15] . . .A suspicion that a person is a general
wrong-doer is not enough to justify a search. Rather, a search
can be conducted only when there is reason to suspect specific
misconduct and that evidence of that misconduct will be
found. When fraud or theft are suspected. . .

[16] . . .Given the district court's holding, with which
we agree, that the evidence does not in itself justify the
search, and given the vague and stale nature of the allegations,
any probative value those allegations might have for the pur-
poses of determining the validity of a search based on a the-
ory of cumulative suspicion would be at best minimal. . . 

. . . We must assume that the jury rejected the defen-
dants' version of the facts and believed Dr. Ortega's -- that
is, that the jury concluded that the defendants without suffi-
cient reason deliberately conducted an indiscriminate and
highly intrusive search through Dr. Ortega's most personal
belongings in an effort to see whether any evidence could be
discovered on any subject that might be of use in an adversary
administrative proceeding; seized . . .

IV

It is now seventeen years since the search of Dr. Ortega's
office occurred. . . It is time to bring this matter to a
conclusion. We have considered the defendants' remaining
assertions regarding the district court's evidentiary rulings,
the jury's damage awards, and the district court's award of
attorney's fees, and we find them to be without merit. Accord-
ingly, the judgment of the district court is AFFIRMED.

the end