Supreme Court Rules in Firefighter Case

The US Supreme Court has set precedent with another fire service case – this time focusing on the liability of an attorney hired to conduct an investigation into a firefighter’s misconduct. It is a case we have been following for some time out of Rialto, California.

Rialto 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 the 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 seemingly subtle point plays a pivotal role in the case.

As the interview unfolded, Delia acknowledged buying the supplies, denied working while off injured, and denied doing work to his house.  He claimed the fiberglass was still at his home and still in the 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.

Delia was subsequently ordered to produce the rolls of insulation from his house. Delia’s attorney (who was present) objected to the order, insisting it violated the 4th Amendment. Following a contentious meeting in which the lawyer threatened to sue the fire department, the chiefs and Filarsky, Delia was given a written order to produce the insulation. The order was signed by Chief Wells.

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.

Delia filed suit under 42 USC §1983 against the Rialto Fire Department, Fire Chief Stephen C. Wells, Battalion Chief Peel, Battalion Chief Bekker, and Filarsky alleging that the order to produce the rolls of insulation constituted an illegal warrantless search in a violation of his 4th Amendment rights.

The District Court concluded that Delia’s 4th Amendment rights were in fact violated, but granted summary judgment to the defendants 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. Filarsky appealed to the US Supreme Court.

The issue for the Supreme Court was relatively narrow: was Filarsky, as a contractor, eligible to receive qualified immunity to the same extent as the full-time government employees.

At the center of the legal dispute is a judicially created principle that a governmental agent who intentionally violates someone’s Constitutional Rights can only be held liable if the right that is violated is “clearly established”. According to the Supreme Court’s precedent, a government agent has qualified immunity when the rights that are violated are not “clearly established”.

The trial court ruled that while Delia’s rights had been violated, he had failed to establish that those rights were “clearly established as of the date of Chief Wells’s order, such that defendants would have known that their actions were unlawful.”

The Court looked at the history behind §1983, which granted people whose Constitutional rights were violated by governmental actors acting “under color of law” the right to sue to vindicate their Constitutional rights. The Court noted that in 1871 when §1983 was enacted, many if not most governmental workers were part time and in some cases unpaid officials. In fact, relatively few were what we would consider today as being full time employees.

The Court reasoned that today, “immunity under §1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.”

The Court also compared the investigation conducted by the Rialto Fire Department to the investigative mechanism used by other fire departments such as FDNY:

“New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”

Based on this reasoning, the Court ruled that Filarsky should have received qualified immunity, and Delia loses. The decision was unanimous, 9-0. It was issued Tuesday.

Here is a copy of the decision:  10-1018

And here are some stories about the case. Another.

Let me make two points about this case:

First, a firefighter’s Constitutional Rights were clearly violated, and it appears that despite all the high-falutin rhetoric and the strained “qualified immunity” theories embraced by the Court – that unconstitutional wrong has not been righted. Even now, is it “clearly established” that investigators cannot circumvent the 4th Amendment’s search warrant requirement by “ordering” a firefighter to bring items that are inside his personal home, outside for inspection? Probably not. How many more public employees must endure a violation of their privacy in a similar manner to Nick Delia’s, before that right becomes “clearly established” enough for the Court (or any court) to say “don’t do that anymore”. Unfortunately, the Court didn’t waste any brain power thinking through those minor details.

The Court also glossed over the fact that Delia’s attorney expressly told the chiefs and Filarsky that what they were doing was unconstitutional. It was in fact unconstitutional – but through a judicially created legal fiction of a “qualified immunity” due to a right not being “clearly established”, Delia’s rights cannot be vindicated. Am I missing something?

Second – and under the category of “on the other hand”, if government contractors and others acting in the public’s interest “under color of law” are now entitled to “qualified immunity” – then will that protection extend to volunteer firefighters, particularly personnel who are members of volunteer fire companies who are performing a “public service”. Let me quote from the decision:

  • Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights “under color” of state law.
  • At common law, government actors were afforded certain protections from liability, based on the reasoning that “the public good can best be secured by allowing officers charged with the duty of deciding upon the rights of others, to act upon their own free, unbiased convictions, uninfluenced by any apprehensions.”
  • Understanding the protections the common law afforded to those exercising government power in 1871 requires an appreciation of the nature of government at that time. In the mid-nineteenth century, government was smaller in both size and reach. It had fewer responsibilities, and operated primarily at the local level. Local governments faced tight budget constraints, and generally had neither the need nor the ability to maintain an established bureaucracy staffed by professionals
  • there was at that time “no very clear conception of a professional office, that is, an office the incumbent of which devotes his entire time to the discharge of public functions, who has no other occupation, and who receives a sufficiently large compensation to enable him to live without resorting to other means.” F. Goodnow, Principles of the Administrative Law of the United States 227 (1905). Instead, to a significant extent, government was “administered by members of society who temporarily or occasionally discharge[d] public functions.”
  • it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government actors involved in adjudicative activities, for example, were protected by an absolute immunity from suit.
  • The common law also extended certain protections to individuals engaged in law enforcement activities, such as sheriffs and constables. At the time §1983 was enacted, however, “[t]he line between public and private policing was frequently hazy. Private detectives and privately employed patrol personnel often were publicly appointed as special policemen, and the means and objects of detective work, in particular, made it difficult to distinguish between those on the public payroll and private detectives.”
  • The protections provided by the common law did not turn on whether someone we today would call a police officer worked for the government full-time or instead for both public and private employers. Rather, at common law, “[a] special constable, duly appointed according to law, ha[d] all the powers of a regular constable so far as may be necessary for the proper discharge of the special duties in trusted to him, and in the lawful discharge of those duties, [was] as fully protected as any other officer.”
  • We have called the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business “the most important special government immunity-producing concern.” … Ensuring that those who serve the government do so “with the decisiveness and the judgment required by the public good,”
  • The government’s need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals.
  • To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work—work that will not expose them to liability for government actions. This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity enjoyed by their public employee counterparts.

The language is there to make the argument.

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 a Licensed Private Investigator in the State of Washington. I myself, found the U.S. Supreme Courts ruling unjustified based on the Common Law. It is very clear and distinct, that the Rialto Fire Deatment and Attorney Filarsky, violated the firefighters 4th Ammendment. As a Private Investigator, I cannot conduct any warrantless search without a Subpoena stating the “Probable Cause”, and stating the facts and findings of what is being searched based on the stated “Probable Cause”.

    I personnaly agree with Attorney Varone’s arguement on this case. I myself followed this case from the beginning and was surprised of the Courts Ruling.

    • Thanks Mike

      I think the argument is there even for private investigators who are working for a government employer. The focus of attention is whether the person is acting “under color of law”. If the investigator is hired to conduct an investigation for a goverment agency (eg a fire department) the decision would extend to them.

      Personally, I think the Supreme Court is so far inside their own heads on this issue that they have lost sight of practicality. You have someone who’s 4th Amendment rights have clearly been violated. At least grant them a token judgment of $1 plus attorneys fees for the violation when the right is not “clearly established”. But to knock the victim out of court totally is to encourage Constitutional wrong doing to continue – and discourage people from vindicating their rights.

  • The two ‘concurring decisions’ by Justices Ginsburg and Sotomayor qualify several points in the Court’s ruling.

    (1) An Adverse Job Action (discipline) was threatened if Delia failed to produce the rolls of insulation; this is subsequent to the chief’s signed order.

    Is threatening and coercing someone “to show us the proof — or else!” different than a warrantless search & seizure — a violation of the individual’s 4th Amendment rights?

    Filarsky (on behalf of the chief) warned Delia of the obligation to fully cooperate under threat of discipline “up to & including termination.” The Court ruled that Filarsky had qualified immunity, so it follows that he spoke for the employer. The threatened adverse job action/abandon Constitutional rights trade-off should be viewed as an established violation of Delia’s rights.

    Justice Sotomayor’s concurring opinion states that qualified immunity cases should be decided as they arise regarding individuals working for government and sued under 42 USC 1983.

    So, a private individual who consults to government or otherwise provides services in performance of a public function is best advised to keep themselves well-insured and their premiums paid.

    • Thanks Jon

      I agree the decision makes sense in so far as if the government actors have qualified immunity, so should the attorney. My question goes more toward the seemingly arbitrary and judge drawn distinction between “clearly established” rights and rights that are “not clearly established”… and the existance of a qualified immunity.

      How exactly does a right become “clearly established”… Remember – this is not a criminal case where a criminal defendant would have an interest in vindicating those rights… it is an employment case. The qualified immunity creates a disincentive for people to vindicate their rights… without which the rights can never become “clearly established” and conversely gives a green light for 4th Amendment violations to continue unabated.

      Would the qualified immunity defense have applied if the chiefs entered Delia’s house to see if the insulation was there? It would not have been a criminal search… so would the line of criminal cases have applied??? Would a warrantless entry (physical entry) have crossed the imaginary line of “clearly established”?

  • Nick Delia

    Thanks Curt for your blog and comments…It has been a crazy experience and emotional ordeal. Filarsky has been nearly run out of town in the Southern California area. Within the last week he has sent a few personal addressed letters with some not so nice comments to myself the union and my attorney. Contact me if you can post them. Thanks Nick Delia

    • Thanks Nick

      And thank you for pushing this issue as far as you did. I know on the law enforcement side qualified immunity is considered to be an important protection that police have from the folks who would sue them for every perceived injustice.

      Your situation is different and for the life of me, I just do not understand how qualified immunity can be rationalized on the facts. It seems to me the Court starts from the premise that qualified immunity is good and then engages in the intellectual equivalent of a game of “keep-a-way” to justify why Filarsky deserves immunity – without addressing whether the case warrants immunity for any of the defendants.

      And why is Filarsky sending you nasty letters… is he feeling his oats? Is he gloating? He violated your 4th Amendment rights. The district court said so… he lucked out on account of the qualified immunity… It goes back to the need for the court to have awarded you some nominal damages and attorneys fees rather than grant the defendants qualified immunity… Sorry for the rant… but without at least nominal damages how else can your rights be vindicated?

  • Joe

    The lawyer who won the case wasn’t satisfied with just winning. He asked the firefighter to enjoy the legal decisions “eternally from hell”

    • Thanks Joe

      I’d suggest everyone take a look at the posting Joe left for us –

      Is this guy Filarsky for real? He violated Nick Delia’s rights – get’s off on a technicality (qualified immunity) – and then he sends a letter like that? Give me a break. That is pathetic and unprofessional.

  • This could not be more improper. The immu­nity gets extended as the [ille­gal] actions of the con­trac­tor can be used as lever­age to avoid pros­e­cu­tion for those actions for the contractor’s other clients.

    Real life exam­ple: My wife hired the pri­vate inves­ti­ga­tor used by the county for [ille­gal] sur­veil­lance. The PI has hacked my com­put­ers and phones and used tech­nol­ogy to harass and ter­ror­ize me. Law enforce­ment refuses to respond to any report of intrusion/​harassment. This has been ongo­ing since 2007. There is no end in sight because they can­not be pros­e­cuted. My ter­ror continues.

    There can be no log­i­cal eth­i­cal or moral way that this rul­ing can stand.

    My case is doc­u­mented at http://​www​.work2b​done​.com/​l​ive

    Not only was the PI used to lever­age immu­nity for their crimes, but a judge inten­tion­ally issued an order which was kept secret — undock­eted and undis­trib­uted. The result was the com­plete per­ver­sion of any court pro­ceed­ing as the lawyers lever­aged the ‘secret order’ to obtain immu­nity to defy EVERY court order.

    I am seek­ing to find a lawyer, but no lawyer wants to go against the county depart­ments, law enforce­ment and 8 judges,… The sit­u­a­tion is insane, but the vic­tim is not.

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