Metropolitan News-Enterprise


Friday, September 10, 2010


Page 1


No Immunity for City’s Outside Counsel, Court Rules


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that a Manhattan Beach attorney acting as private counsel for the City of Rialto was not shielded from liability arising from the unconstitutional search of a firefighter’s home as part of an internal affairs investigation.

U.S. District Judge Mark W. Bennett of the Northern District of Iowa, sitting by designation, explained that Steve Filarsky was not entitled to qualified immunity because he was not a government employee, but that fire department officials who conducted the search were protected because they did not have notice that their conduct violated the Fourth Amendment.

The firefighter, Nicholas Delia, was diagnosed with an ulceration of the esophagus in 2006 and received a series of off-duty work orders from his doctor. Although his doctor did not place any activity restrictions on him, the city began a formal internal affairs investigation to determine whether Delia was off-work on false pretenses after he was seen buying several rolls of fiberglass building insulation at a home improvement store.

The city retained Filarsky to conduct an administrative interview of Delia as part of the investigation. At the onset of the interview, Filarsky warned Delia that he was obligated to cooperate or he could face disciplinary action, including termination.

During the interview, Delia admitted to purchasing rolls of insulation but denied installing them. When Delia declined to allow department officials to enter his home to confirm his statement, or to produce them outside of his home for the officials’ inspection, Filarsky presented him with a written order to do so, signed by the fire chief, and concluded the interview.

Immediately thereafter, two department officials followed Delia, in a city vehicle, to his home. They remained seated in their vehicle at the curb in front of Delia’s house while the rolls were brought out to the lawn, and then thanked Delia and left.

Delia later filed a 42 U.S.C. § 1983 action against the city, various fire officials and Filarsky claiming he had been subjected to an unconstitutional warrantless search. The defendants moved for summary judgment and U.S. District Judge Manuel L. Real of the Central District of California granted their motion.

On appeal, Bennett wrote that Delia’s right to be free from unreasonable searches and seizures was violated because his actions in producing the insulation were involuntary and coerced by the direct threat of sanctions, including loss of his job.

However, Bennett reasoned, the right was not clearly established because the Ninth Circuit’s case law had never recognized a Fourth Amendment violation in situations where the government officials demanding entry to a dwelling were not police.

Bennett went on to explain that Filarsky, unlike the other individual defendants, could be held liable based on circuit precedent declining to extend protection to private parties in Sec.1983 cases. But he said the city was not subject to municipal liability where there was no custom or policy of conducting the type of unwarranted search to which Delia had been subjected, and where the individual defendants had not been acting as final policymakers when they ordered him to produce the rolls of insulation. 

Judges Alfred T. Goodwin and Johnnie B. Rawlinson joined Bennett in his decision.

Michael A. McGill and Carolina V. Diaz of Lackie, Dammeier & McGill represented Delia, while Howard B. Golds and Cynthia M. Germano of Best Best & Kreiger, L.L.P. represented the city and its employees. Jon H. Tisdale and Jennifer Calderon of Gilbert, Kelly, Crowley & Jennett represented Filarsky.

The case is Delia v. City of Rialto, 09-55514.


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