WASHINGTON, D.C. - (Mealey's) When a private
attorney is temporarily retained by the government to work with or under
government employees, that attorney is entitled to the same qualified immunity
that government employees receive, the attorney representing Steve A. Filarsky
told the U.S. Supreme Court today Jan. 17 (Steve A. Filarsky v. Nicholas B.
Delia, No. 10-1018, U.S. Sup.) (lexis.com subscribers may access Supreme Court briefs for this case).
"That rule comports with the history and policy concerns
that have animated this Court's [42 U.S.
Code] section 1983 and immunity jurisprudence," Patricia A. Millett of Akin,
Gump, Strauss, Hauer & Feld in Washington
Multiple Excused Absences
In July 2000, Nicolas Delia was hired by the Fire
Department of the City of Rialto, Calif., to work as a firefighter. He
was later promoted to engineer. But in 2006, as a result of a disciplinary
decision, Delia was demoted to firefighter.
On Aug. 10, 2006, Delia began to feel ill while working
to control a toxic spill. He was taken to a hospital emergency room where
a doctor gave him an off-duty work order for three work shifts. The doctor,
however, did not place Delia on any activity restrictions.
On Aug. 15, Delia returned to the hospital where the
doctor again gave him an off-duty work order. This time, the order was
for eight shifts. The doctor also scheduled Delia for a medical test.
Once more, Delia was not placed on any activity restrictions.
Delia went to the hospital again on Aug. 22 and was given
an off-duty work order for eight shifts. Shortly after this visit, Delia
underwent a colonoscopy and endoscopy. He was diagnosed with
esophagitis. On Aug. 29, Delia's doctor issued him an off-duty work order
from that day through Sept. 3.
The city was suspicious of Delia's off-work status based
on his disciplinary history and hired a private investigation firm to conduct
surveillance on Delia. During this surveillance, Delia was filmed buying
building supplies, including several rolls of fiberglass building
insulation. Based on these observations, the city began a formal internal
affairs investigation of Delia even though Delia had no activity restrictions
placed on him by his treating physician.
As part of the investigation, Delia was ordered to appear
Sept. 18 for an administrative investigation interview. The interview was
conducted by Filarksky, a private attorney retained by the city. Also
present at the interview were Delia's attorney Stuart Adams and Battalion
Chiefs Mike Peel and Frank Bekker.
Filarsky questioned Delia about home construction
projects he was undertaking in his home. Delia answered that he had some
duct work done and had purchased some rolls of insulation. Delia claimed
that the insulation was still sitting bagged up in his home. Filarsky
then took a break and conferred with Peel and Bekker and with Fire Chief Stephen
Wells. With Wells' permission, Filarksy then asked Delia to allow Peel to
follow him to his home and conduct a warrantless search of the insulation
there. Delia refused.
Filarksy then ordered Delia to produce the rolls of
insulation from his home. When Adams
questioned Filarsky's authority and requested the order in writing, Delia was
presented with a written order to produce the insulation signed by Wells.
Immediately after the interview, Peel and Bekker followed
Delia to Delia's home. When Delia produced the insulation, Peel and
On May 21, 2008, Delia sued the city, the fire
department, Wells, Peel, Bekker and Filarsky in the U.S. District Court for the
Central District of California. The defendants moved for summary
judgment. The District Court granted the motions, finding that Delia had
not established municipal liability against the city and that he failed to show
that he was injured by an express policy, a longstanding custom or an official
with final policymaking authority. The District Court also found that
Wells, Peel and Bekker were entitled to qualified immunity. As for
Filarsky, the District Court found that his conduct did not result in the
deprivation of any constitutional right. Delia appealed.
A Ninth Circuit U.S. Court of Appeals panel opined that
Delia's right under the Fourth Amendment to the U.S. Constitution to be
protected from a warrantless unreasonable search of his home was
violated. However, because that right was not clearly established at the
time, the panel affirmed the order granting qualified immunity to Wells, Peel
and Bekker. The panel also affirmed the grant of summary judgment with
regard to the city's liability but reversed the grant of qualified immunity to
Filarsky. Filarsky then petitioned the U.S. Supreme Court.
Presenting oral arguments for the United States
in support of Filarsky, Assistant to the Solicitor General Nicole A. Saharsky
argued, "Petitioner may assert qualified immunity on the same terms as the fire
department officials, because he was working side-by-side with them and under
their supervision on a personnel investigation. And this is really
exactly the situation that the Court reserved and anticipated in Richardson
[v. McKight (521 U.S. 399, 407 )], that when you have a situation
where private and government workers work closely together and you deny
qualified immunity to the private person, it would directly affect the ability
of the government employees to do their jobs."
Michael A. McGill of Lackie, Dammeier & McGill in Upland, Calif.,
representing Delia, countered that Filarsky has failed to show a historical
basis of common-law immunity for someone in his position.
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