2012 Precedent Nothing To Speak Of

2012 has been a relatively quiet fire law year from the perspective of major legal rulings being handed down. In fact, in my annual review for Firehouse which I submitted today, I opted to not even discuss 2012 precedent setting case law (there really weren’t any to speak of) and instead focused on new cases and controversies that developed in 2012… and boy were there alot of them!!!!

Nevertheless, there were a couple of cases that were decided in 2012 that are worth noting. During this holiday week when there is not alot of legal headlines – we pause to take a look back.

Probably the most significant fire law ruling in 2012 was the only US Supreme Court fire service decision, Delia v. City of Rialto, also known by it’s name at the Supreme Court, Filarsky v. DeLia.

There are a few reasons that I opted not to bother discussing this case in the Firehouse article – but probably the biggest is the convoluted reasoning that the Supreme Court used in the case.

Ok… so at this point there are two groups of readers out there – one group saying I am not sure what he means by convoluted, and the other group saying – gee, I wouldn’t call the DeLia decision convoluted.

To the latter group (most likely Federal court judges, law professors, and legal scholars), I agree – convoluted may be a bit strong. Any second year law student should be able to follow the reasoning. BTW – you should stop reading here.

To the rest of the readers – only a legal theorist who has spent way too much time thinking and not enough time doing could possibly reach the conclusion of the Supreme Court in DeLia… and explaining the Court’s decision in full detail would bore us to the verge of tears… or drinking… or both.  I did my best back to explain the ruling back in April, so if you are interested in a more in depth discussion by all means read the April 20, 2012 posting.

The thumbnail sketch of the DeLia case:

  • A firefighter, Nicholas DeLia, was suspected of abusing his injury status.
  • A private investigator observed him buying construction supplies including rolls of insulation.
  • At an interrogation conducted by a private attorney hired by the city (Filarsky) he was asked to explain the purchase.
  • DeLia said he intended to install the insulation in his house when he was better and it was still at his house in its original packaging.
  • He was asked to produce the insulation and on advice of counsel he declined, citing an expectation of privacy because the rolls were in his house.
  • DeLia was then given a written order by the fire chief to produce the insulation.
  • Over the objection of his attorney he was accompanied to his house by two chief officers whereupon he went inside, and came out with the insulation.
  • As a result the investigation was completed.
  • FF DeLia then filed suit against the city, the chiefs and Filarsky alleging a violation of his 4th Amendment Rights. In essence FF DeLia claimed that the order to bring something out of his house constituted a warrantless search – the same as if the chiefs had entered his house without consent or if the chief had ordered him to consent to an entry.
  • The courts in the case at all three levels (trial, court of appeals, and Supreme Court) held that what the chiefs did under Filarsky’s direction was a violation of DeLia’s Fourth Amendment Rights… but here is where it gets convoluted:
  • The courts held that everyone… the fire chief, the others chiefs, the city and even the attorney, Filrsky – had qualified immunity… so FF Delia loses….

I am not sure how much we would gain by getting into the reasoning of the Court, suffice it to say I don’t buy it. A Constitutional violation – any Constitutional violation – should be vindicated – if by no other means than by a $1 nominal judgment. However, our decidedly conservative (anti-employee) courts have been developing an ever increasing body of convoluted case law that finds immunity for this violation and qualified immunity for that violation, and justice be damned. It’s like a judicial game of keep-a-way where even when you win, you lose… and DeLia – whose 4th Amendment Rights were clearly violated – well he loses. Sorry about making you go through all that trouble.

The next case is a wage and hour case, Freeman v. Key Largo Volunteer Fire & Rescue Department et al, 2012 U.S. App. LEXIS 22392 (11th Cir. 2012), decided on October 31, 2012. It is a peculiar case with (not surprisingly) the same outcome as we saw in Delia: a firefighter who sues his fire department-employer, loses.

At issue in the case was whether or not a firefighter who receives $5 per hour is a volunteer receiving “nominal compensation” for his services, or an underpaid employee entitled to at least minimum wage.

Corey Freeman filed suit against Key Largo claiming that the $5 per hour he was paid to serve as a firefighter was less than the $7.25 Federal minimum wage and in violation of the Fair Labor Standards Act (FLSA). Key Largo claimed he got what he got because he was an unpaid volunteer and the $5 was merely nominal compensation.

The court concluded that Freeman was a volunteer. In reaching that conclusion the court inexplicably ignored the US Department of Labor’s primary test for determining if someone is a volunteer or not, the so-called 20% rule. Under that test an organization such as a fire department can give volunteers nominal compensation so long as it does not exceed 20% of what it would pay a similar employee. Here is a link to more discussion on the case, but truthfully it is another 2012 ruling that leaves me scratching my head… and another reason why I omitted it from my Firehouse article.

Tomorrow we will take a look at some other cases from 2012… unless of course there is some breaking fire law event!!!!


About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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