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.

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