US Supreme Court Accepts Fire Service Case on…. Lawyer’s Liability

Another fire service case is headed to the US Supreme Court, this one involving a California attorney hired to investigate sick leave in the Rialto Fire Department.

Firefighter Nicholas B. Delia was off-injured and department administrators were suspicious given the circumstances and his disciplinary history. He was placed under surveillance and filmed purchasing building supplies including rolls of fiberglass insulation.

As part of an investigation Delia was called to appear for an interview conducted by attorney Steve Filarsky. Filarsky was not a public employee but rather had been hired by the city as a contractor. That subtle point is the focus of the appeal.

As the interview unfolded, Delia acknowledged buying the supplies, but claimed they were still at his home and still in their original packaging. After several brief adjournments where Filarsky met with fire department officials, Delia was asked if he would consent to allowing Battalion Chief Mike Peel to enter his house to conduct a warrantless search. Delia declined.

According to the 9th Circuit’s decision “Unable to get Delia to volunteer, Filarsky orally ordered Delia to produce the rolls of insulation from his house. Adams, Delia’s attorney, questioned Filarsky’s legal authority for issuing such an order and requested that the order be in writing. Following a lengthy break, Delia was presented with a written order to produce the insulation for inspection signed by Chief Wells. The interview then concluded.”

Chief Peel and Battalion Chief Frank Bekker then followed Delia to his house where they waited outside as Delia produced the requested rolls. The investigation seemly ended when Delia produced the rolls.

Several months later Delia filed suit alleging a violation of his Fourth Amendment Right to be free from unreasonable searches. The suit named the Rialto Fire Department, Fire Chief Stephen C. Wells, Battalion Chief Peel, Battalion Chief Bekker, and Steve Filarsky. The District Court dismissed the complaint concluding that all parties had qualified immunity. The 9th Circuit affirmed the District Court as to all defendants except for Filarsky ruling that his status as a contractor make him ineligible for qualified immunity.

That will be the issue for the US Supreme court. The Delia case is one of seven cases that the Court accepted for the upcoming term.

Here is a link to the 9th Circuit’s decision.

Here is more on the story.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

  • As someone who represents municipalities and fire departments I am very interested to see what the outcome is in this case. Thanks for sharing this.

    • Anthony – It amazes me how many fire cases make it to the Supreme Court.

      I’m keeping a close watch on this one myself. Perhaps the case will result in the need to make attorneys – employees, albeit part timers.

  • Pingback: Supreme Court Rules in Firefighter Case | Fire Law()


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