In Delia v. City of Rialto, (— F.3d —-, C.A.9 (Cal.), September 9, 2010), the United States Court of Appeals for the Ninth Circuit considered whether a government employer’s demand that an employee go to his home to retrieve items and place them in his front yard so that the employer could see them constituted an illegal warrantless search. The court of appeals held that although the search violated the Fourth Amendment’s protection against unreasonable searches, the government officials involved in the search were entitled to qualified immunity.
Facts
Nicholas B. Delia (“Delia”) is a firefighter employed by the Rialto Fire Department (“Department”). Delia became ill after working a toxic spill and took time off work. Delia had been disciplined by Department in the past. Due to his past history, the City of Rialto (“City”) became suspicious of Delia’s activities while he was off work. City hired a private investigation firm to conduct surveillance on Delia. The firm filmed Delia buying building insulation at a home improvement store. City began a formal investigation into whether Delia “was off-work due to false pretenses.” City ordered Delia to appear at an administrative investigation interview. City hired a private attorney, Steve Filarsky (“Filarsky”), to conduct the interview. Also present at the interview were Delia’s attorney and two battalion chiefs, Mike Peel (“Peel”) and Frank Bekker (“Bekker”).
Filarsky questioned Delia about whether any home improvement projects were underway at Delia’s home. Delia stated that some duct work had been done in his home and that he had purchased some rolls of insulation and those rolls were currently sitting in his home. Fire chief, Stephen C. Wells, agreed to allow “Filarsky to order Delia to produce the rolls of insulation.” On advice of his attorney, Delia refused Filarsky’s request to allow Peel to enter into Delia’s home to conduct a warrantless search for the insulation. Filarsky then asked Delia if he would volunteer to allow Peel to follow him to his house and then go inside and bring out the rolls of insulation to show to Peel. Delia also refused this request. Filarsky then ordered Delia to produce the rolls of insulation. After Filarsky was questioned about his authority to make such an order, Delia was presented with a written order from Chief Wells to produce the insulation for inspection. Battalion chiefs Peel and Bekker followed Delia in a City vehicle to Delia’s house and parked in front of the house. Delia, his attorney, and a union representative went into the house and brought out several rolls of insulation and placed them on Delia’s lawn. Peel then thanked Delia and left.
Delia filed a lawsuit against City, Department, Wells, Peel, Bekker, and Filarsky. The trial court granted summary judgment in favor of the defendants.
Decision
The court of appeals held Delia’s Fourth Amendment rights were violated by the search. The Fourth Amendment of the United States Constitution, which is applicable to the states through the Fourteenth Amendment, guarantees that people have the right “to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment applies to searches and seizures of a government employee’s private property that are conducted by government employers and supervisors.
Here, Department initially asked for Delia’s consent to conduct a warrantless search of Delia’s home. Delia refused consent so then Department asked Delia to bring the insulation rolls outside so they could be seen. Delia also refused this request. Department then ordered Delia to go into his home and bring the rolls of insulation out and place them on the lawn. Department had told Delia at the beginning of the interview that his failure to cooperate with the investigation could result not only in charges of insubordination but also termination. The court found Delia’s actions were involuntary and that he was coerced by Department through the threat of sanctions. The court held the warrantless search violated Delia’s Fourth Amendment right “to be free from an unreasonable search of his home by his employer” because “[C]ompliance with a [governmental] demand is not consent.”
The court, however, held that Wells, Peel, and Bekker were entitled to qualified immunity from Delia’s claims against them because Delia’s right was not clearly established at the time of their misconduct. The court found that Delia’s “case does not fit neatly into any previous category of Fourth Amendment law.”
The court further found that Filarsky was not entitled to qualified immunity. Filarsky was not an employee of City but a private attorney retained by City to participate in the internal affairs investigation of Delia. The court held “Filarsky is not entitled to qualified immunity as a private attorney.”
Finally, the court held that City was not liable for its employees’ actions. Pursuant to 42 U.S.C. § 1983, “City may be held liable . . . for its’ employees’ actions where one of its customs or policies caused a violation of Delia’s constitutional rights.” In order to establish liability, Delia was required to show that the violation of his constitutional rights resulted from “(1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a ‘final policymaker.'” Delia alleged no expressly adopted official policy, longstanding practice or custom. Therefore, the only feasible ground for recovery would be that a Department employee acted as a final policymaker. However, the Court found that under City’s ordinances, even thought Department’s chief “had final authority over the fire department’s day-to-day supervision and administration, he was not authorized to establish city policy.” The court concluded that “only the city council’s decisions would provide a basis for city liability” but there was no evidence of such a city council decision in the record.
The court remanded the case for further proceedings only on the issue of Delia’s claim against Filarsky.
Questions
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