Delia v. City of Rialto

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS B. DELIA, 

Plaintiff-Appellant,

v.

CITY OF RIALTO, a Public Entity;

CITY OF RIALTO FIRE DEPARTMENT,

a Public Agency; STEPHEN C. No. 09-55514

WELLS, Individually and as the

D.C. No.

Fire Chief for the City of Rialto;

MIKE PEEL, Individually and as  2:08-cv-03359-

Battalion Chief for the City of R-PLA

Rialto; FRANK BEKKER, OPINION

Individually and as Battalion Chief

for the City of Rialto; STEVE A.

FILARSKY, Individually and as an

Internal Affairs Investigator for

the City of Rialto,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

June 11, 2010—Pasadena, California

Filed September 9, 2010

13769

13770 DELIA v. CITY OF RIALTO

Before: Alfred T. Goodwin, Johnnie B. Rawlinson,

Circuit Judges, and Mark W. Bennett, District Judge.*

Opinion by Judge Bennett

*The Honorable Mark W. Bennett, United States District Judge for the

Northern District of Iowa, sitting by designation.

DELIA v. CITY OF RIALTO 13773

COUNSEL

Michael A. McGill and Carolina V. Diaz of Lackie, Dam-

meier & McGill, Upland, California, for appellant Nicholas B.

Delia.

Howard B. Golds and Cynthia M. Germano of Best Best &

Kreiger, L.L.P., Riverside, California, for appellees City of

Rialto, City of Rialto Fire Department, Stephen C. Wells,

Mike Peel and Frank Bekker.

13774 DELIA v. CITY OF RIALTO

Jon H. Tisdale and Jennifer Calderon of Gilbert, Kelly, Crow-

ley & Jennett, Los Angeles, California, for appellee Steve A.

Filarsky.

OPINION

BENNETT, District Judge:

Appellant Nicholas B. Delia (“Delia”), a firefighter,

brought this 42 U.S.C. § 1983 action against the City of

Rialto, the Rialto Fire Department, Rialto Fire Chief Stephen

C. Wells, two Rialto Fire Department Battalion Chiefs, Mike

Peel and Frank Bekker, and a private attorney, Steve Filarsky.

Delia alleges violations of his constitutional rights arising dur-

ing a departmental internal affairs investigation. While being

represented by counsel and interrogated at headquarters, he

was ordered to go directly to his home while being followed

by Battalion Chiefs Peel and Bekker in a City vehicle. He was

ordered that when he arrived at his home he was to enter his

home while in full view of the Battalion Chiefs, retrieve sev-

eral rolls of recently purchased insulation, and bring them out

of the house and place them in his front yard for inspection

by the Battalion Chiefs. Delia was told earlier in the interview

that if he failed to do this he could be found to be “insubordi-

nate” and subject to disciplinary action including termination.

This order was given a few minutes after Delia and his coun-

sel refused to consent to a warrantless search of his home by

Battalion Chief Peel.1

The district court granted summary judgment in favor of all

1

Delia asserts in his complaint that defendants’ actions violated his right

to be free from unreasonable search and seizures under the Fourth and

Fourteenth Amendments. He also asserts that defendants violated his right

to be free from invasions of privacy under the First, Fifth and Fourteenth

Amendments. In this appeal, however, he claims only violations of his

Fourth and Fourteenth Amendment rights.

DELIA v. CITY OF RIALTO 13775

defendants. In a written order, the district court held that all

of the individual defendants were entitled to qualified immu-

nity. The district court also found that the City of Rialto (“the

City”) could not be held liable under Monell v. Department of

Social Services, 436 U.S. 658 (1978). This was because Delia

failed to show that a municipal policy caused his injury. This

timely appeal followed. We have jurisdiction pursuant to 28

U.S.C. § 1291.

For the reasons discussed below, we conclude that Delia’s

constitutional right under the Fourth Amendment of the

United States Constitution to be protected from a warrantless

unreasonable compelled search of his home was violated.

However, because we also conclude that this right, under

these or similar facts, was not clearly established at the time

of this constitutional violation, we affirm the district court’s

order granting qualified immunity to Stephen Wells (“Chief

Wells”), Mike Peel (“Peel”), and Frank Bekker (“Bekker”).

We also affirm the district court’s grant of summary judgment

to the City on Delia’s Monell claim, but reverse the district

court’s grant of qualified immunity to Steve Filarsky

(“Filarsky”) and remand for further proceedings.

I. BACKGROUND

A. Work Incident And Its Aftermath

In July 2000, Delia was hired by the City’s Fire Depart-

ment as a firefighter. He was later promoted to the rank of

engineer. As a result of a disciplinary decision against him, he

was demoted back to firefighter in June 2006. On August 10,

2006, Delia began to feel ill while working to control a toxic

spill. He was then transported to a hospital emergency room

for evaluation. There, a doctor gave him an off-duty work

order for three work shifts. The doctor, however, did not place

any activity restrictions on Delia.

On August 15, 2006, Delia returned to the hospital. The

doctor again issued him an off-duty work order. This time it

13776 DELIA v. CITY OF RIALTO

was for eight shifts. The doctor also scheduled a medical test

for him. Again, the doctor did not place any activity restric-

tions on Delia. On August 22, 2006, Delia returned to the hos-

pital and the doctor gave him an off-duty work order for eight

shifts. Once again, no activity restrictions were placed on

Delia. Shortly after this examination, Delia underwent a

colonoscopy and endoscopy. He was diagnosed with esopha-

gitis, an ulceration of the esophagus. On August 29, 2006,

Delia’s doctor issued an off-duty work order for the period of

August 29, 2006, through September 3, 2006. The doctor

cleared him to return to work after September 3, 2006.

The City was suspicious of Delia’s off-work status due to

his disciplinary history. The record reveals that Delia was pre-

viously disciplined for sending improper e-mails. Why this

would make the City suspicious of Delia’s off-work activities

is not readily apparent. In any event, the City 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, at a

home improvement store. Based on these observations, the

City began a formal internal affairs investigation of Delia to

determine whether he was off-work on false pretenses. The

City began its internal affairs investigation of Delia despite

the fact that Delia had no activity restrictions placed on him

by his treating physician and the City possessed no contrary

evidence.

As part of the internal affairs investigation, Delia was

ordered to appear, on September 18, 2006, for an administra-

tive investigation interview. The interview was conducted by

Filarsky, a private attorney retained by the City. Filarsky had

previously represented the City in conducting interviews dur-

ing internal affairs investigations.

B. The Internal Affairs Interview

Filarsky’s interview of Delia was conducted on September

18, 2006. In addition to Filarsky and Delia, Delia’s attorney,

DELIA v. CITY OF RIALTO 13777

Stuart Adams, Peel and Bekker were also present at the inter-

view. At the onset of the interview, Filarsky warned Delia that

he was obligated to fully cooperate. Delia was further cau-

tioned that “[i]f at any time it is deemed you are not cooperat-

ing then you can be held to be insubordinate and subject to

disciplinary action, up to and including termination.”

After some preliminary questions, Filarsky asked Delia

about any home construction projects he was currently under-

taking in his home. Delia answered that he had some duct

work done in his home and had purchased some rolls of insu-

lation. He told Filarsky that the rolls were currently sitting in

his house. Filarsky showed Delia a videotape of him purchas-

ing home construction materials, including the rolls of insula-

tion, at a store. Filarsky asked Delia whether this insulation

had been installed. Delia told Filarsky that it was still bagged

at his house. Shortly after this line of questioning, Filarsky

requested Delia and Adams step out of the interview room so

he could confer with “the Chiefs.” During this break, Filarsky

consulted with Chief Wells concerning his desire to order

Delia to produce the rolls of insulation for inspection. Chief

Wells, who was never present during the interview with

Delia, agreed to permit Filarsky to order Delia to produce the

rolls of insulation.

Following the break, Filarsky asked Delia to allow Peel to

follow him to his house and, once there, permit Peel to enter

his home to conduct a warrantless search of the insulation

there. On the advice of counsel, Delia refused Filarsky’s

request. Unable to get Delia to consent to a warrantless search

of his house by Peel, Filarsky then asked if Delia would vol-

unteer to have Peel follow him to his house, where Delia

would bring out the rolls of insulation to show Peel that they

had not been installed. Again, on the advice of his counsel,

Delia refused Filarsky’s request.

Unable to get Delia to volunteer, Filarsky orally ordered

Delia to produce the rolls of insulation from his house.

13778 DELIA v. CITY OF RIALTO

Adams, Delia’s attorney, questioned Filarsky’s legal authority

for issuing such an order and requested that the order be in

writing. Following a lengthy break, Delia was presented with

a written order to produce the insulation for inspection signed

by Chief Wells. The interview then concluded.

C. The Search And Resulting Lawsuit

Immediately after the interview, Peel and Bekker followed

Delia, in a city vehicle, to Delia’s house. Once there, Peel and

Bekker parked alongside the curb in front of Delia’s house,

and waited a few minutes for Adams to arrive. Peel and Bek-

ker never left their vehicle. After Adams arrived, he, Delia,

and a union representative went into Delia’s house and

brought out three or four rolls of insulation and placed them

on his lawn. After Delia brought out the last roll of insulation,

Peel thanked him for showing them the insulation and the two

drove off. On May 21, 2008, Delia filed this lawsuit. Defen-

dants subsequently moved for summary judgment. At the

hearing on defendants’ motions for summary judgment, the

district court orally granted defendants’ motions. The court

found that Delia had not established municipal liability

against the City. The court concluded that Delia had 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 the individual defendants, Chief

Wells, Peel, and Bekker were entitled to qualified immunity.

However, with respect to Filarsky, the court stated:

As to Defendant Filarsky, the evidence establishes

that Filarsky’s conduct did not result in the depriva-

tion of any constitutional right required — as a

required element for a 1983 claim. Filarsky’s con-

duct consisted of conducting the interview, arguing

with Delia’s attorney, and consulting with Fire Chief

Wells, who then issued the written order. Filarsky

was not present at Delia’s house, and at no point was

DELIA v. CITY OF RIALTO 13779

Delia threatened with subordination [sic] or termina-

tion if he refused to comply with the order.

The district court’s written order granting defendants’

motions for summary judgment does not contain this holding.

The district court directed defense counsel to prepare find-

ings of fact and conclusions of law. It appears from the record

that the district court mechanically adopted the findings of

fact and conclusions of law as prepared by defense counsel.2

In its written order, the district court concluded that Filarsky,

as well as Peel, Bekker and Chief Wells, was entitled to quali-

fied immunity. No explanation for this change in the district

court’s reasoning appears in its written order.3 The district

2

This court has previously noted its disapproval of this practice. Federal

Trade Comm’n v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1215 (9th

Cir. 2004); Unt v. Aerospace Corp., 765 F.2d 1440, 1444 (9th Cir. 1985);

Lumbermen’s Underwriting Alliance v. Can-Car, Inc., 645 F.2d 17, 18-19

(9th Cir. 1980); Industrial Bldg. Materials, Inc. v. Interchemical Corp.,

437 F.2d 1336, 1339 (9th Cir. 1970). As this court recognized forty years

ago in Interchemical Corp.: “This practice has been condemned because

of the possibility that such findings and conclusions, prepared by the non-

objective advocate, may not fully and accurately reflect the thoughts enter-

tained by the impartial judge at the time of his initial decision.” Inter-

chemical Corp., 437 F.2d at 1339; see also United States v. El Paso

Natural Gas Co., 376 U.S. 651, 657 n.4 (1964) (quoting Judge J. Skelly

Wright’s admonition, in his Seminars for Newly Appointed United States

District Judges 166 (1963), that: “ ‘lawyers, and properly so, in their zeal

and advocacy and their enthusiasm are going to state the case for their side

in these findings as strongly as they possibly can. When these findings get

to the courts of appeals they won’t be worth the paper they are written on

as far as assisting the court of appeals in determining why the judge

decided the case.’ ”); Nissho-Iwai Co. v. Star Bulk Shipping Co., 503 F.2d

596, 598 (9th Cir. 1974) (“We are aware that busy judges sometimes

request attorneys to prepare the first draft of proposed findings and con-

clusions. The vice is when the district judge fails to study them and make

such changes as are necessary to be sure they reflect his opinion.”).

3

The dangers of mechanically adopting counsel prepared summary

judgment orders appear to be exemplified in this case. The district court’s

oral reasons for granting summary judgment do not match its written

13780 DELIA v. CITY OF RIALTO

court also held that the City was entitled to summary judg-

ment on Delia’s Monell claim. The district court, again, found

that Delia had not established that he was injured by an

express policy, a longstanding custom, or an official with

final policymaking authority.

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary

judgment. Long Beach Area Chamber of Commerce v. City of

Long Beach, 603 F.3d 684, 689 (9th Cir. 2010). We must

determine whether, viewing the evidence in the light most

favorable to Delia, as the nonmoving party, “there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law.” California

Alliance of Child and Family Servs. v. Allenby, 589 F.3d

1017, 1020 (9th Cir. 2009).

order. Yet, no explanation for this change appears in the record. Because

the district court’s written order postdates its oral statement, we will pro-

ceed on the presumption that the district court abandoned its prior oral rea-

soning for granting summary judgment. We will, instead, rely exclusively

on the district court’s written order. See White v. Washington Public

Power Supply Sys., 692 F.2d 1286, 1289 n.1 (9th Cir. 1982) (noting that

“the rule in this circuit is that the formal findings of fact and conclusions

of law supersede the oral decision.”); see also O’Neill v. AGWI Lines, 74

F.3d 93, 95 (5th Cir. 1996) (noting that “to the extent that the district

court’s statements from the bench conflict with its formal findings and

conclusions of law, we need not consider them.”); Snow Machines, Inc. v.

Hedco, Inc., 838 F.2d 718, 727 (3d Cir. 1988) (noting that “a formal order

controls over a prior oral statement.”); E.E.O.C. v. Exxon Shipping Co.,

745 F.2d 967, 974 (5th Cir. 1984) (observing that “to the extent the [trial]

court’s statements from the bench conflict with its formal findings and

conclusions, we do not consider them.”); Harbor Tug & Barge v. Belcher

Towing, 733 F.2d 823, 827 n.3 (11th Cir. 1984) (“The trial judge was not

bound by his off-hand remarks. In its search for error, the reviewing court

looks to the formal findings and conclusions . . .”).

DELIA v. CITY OF RIALTO 13781

III. DISCUSSION

A. Qualified Immunity—The City’s Employees

[1] “The doctrine of qualified immunity protects govern-

ment officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known.’ ” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

Pearson, the United States Supreme Court offered this expla-

nation of the reasoning behind the concept of qualified immu-

nity: “Qualified immunity balances two important interests—

the need to hold public officials accountable when they exer-

cise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Id. In fact, “[t]he protection of qualified

immunity applies regardless of whether the government offi-

cial’s error is ‘a mistake of law, a mistake of fact, or a mistake

based on mixed questions of law and fact.’ ” Pearson, 129 S.

Ct. at 815 (quoting Groh v. Ramirez, 540 U.S. 551, 567

(2004) (Kennedy, J., dissenting).

In considering a claim for qualified immunity, the court

engages in a two-part inquiry: whether the facts shown “make

out a violation of a constitutional right,” and “whether the

right at issue was ‘clearly established’ at the time of defen-

dant’s alleged misconduct.” Pearson, 129 S. Ct. at 815-16. In

Pearson, the Court overruled its prior holding, in Saucier v.

Katz, 533 U.S. 194 (2001), that courts had to proceed through

the two-step inquiry sequentially. Pearson, 129 S. Ct. at 818;

see James v. Rowland, 606 F.3d 646, 651 (9th Cir. 2010) (rec-

ognizing that Pearson overruled Saucier in part). As the Court

explained, “while the sequence set forth [in Saucier] is often

appropriate, it should no longer be regarded as mandatory.

The judges of the district courts and the courts of appeals

should be permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity

13782 DELIA v. CITY OF RIALTO

analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson, 129 S. Ct. at 818.

Thus, following Pearson, it is within our discretion to decide

which step to address first. Brooks v. Seattle, 599 F.3d 1018,

1022 n.7 (9th Cir. 2010); Bull v. City & County of San Fran-

cisco, 595 F.3d 964, 971 (9th Cir. 2010) (en banc). Thus, the

threshhold question we will decide is whether Delia being

ordered to bring the rolls of insulation out of his home for

inspection “make[s] out a violation of a constitutional right.”

Pearson, 129 S. Ct. at 816; see Saucier, 533 U.S. at 201.

1. Fourth Amendment violation

Delia contends that Chief Wells, Peel, and Bekker violated

his Fourth Amendment right to be free from unreasonable

searches and seizures when he was ordered to retrieve the

rolls of home insulation and show them to fire department

personnel. We agree. The Fourth Amendment, made applica-

ble to the states through the Fourteenth Amendment, Mapp v.

Ohio, 367 U.S. 643, 655 (1961), guarantees, “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things

to be seized.” U.S. CONST. amend. IV. The Supreme Court has

held that the Fourth Amendment applies to “[s]earches and

seizures by government employers or supervisors of the pri-

vate property of their employees.” O’Connor v. Ortega, 480

U.S. 709, 715 (1987).

[2] In Payton v. New York, 445 U.S. 573 (1980), the

Supreme Court explained that no zone of privacy is more

clearly defined than one’s home: “[T]he Fourth Amendment

has drawn a firm line at the entrance to the house. Absent exi-

gent circumstances, that threshold may not reasonably be

crossed without a warrant.” Id. at 590; see Kyllo v. United

States, 533 U.S. 27, 28 (2001) (observing that “search of a

DELIA v. CITY OF RIALTO 13783

home’s interior” is “the prototypical . . . area of protected

activity . . .”); Silverman v. United States, 365 U.S. 505, 511

(1961) (observing that “[a]t the very core” of the Fourth

Amendment “stands the right of a man to retreat into his own

home and there be free from unreasonable governmental

intrusion.”); see also United States v. Struckman, 603 F.3d

731, 738 (9th Cir. 2010) (recognizing the core of the Fourth

Amendment is protection against unreasonable searches of

one’s home); United States v. Brock, 667 F.2d 1311, 1326

(9th Cir. 1982) (noting that “[o]ne of the foundations of the

fourth amendment is the right of the people ‘to be secure in

their . . . houses.’ ”); cf. New York v. Harris, 495 U.S. 14, 17

(1990) (“[T]he rule in Payton was designed to protect the

physical integrity of the home[.]”). Therefore, the warrantless

search of a home is presumptively unreasonable unless the

government can prove consent or that the search falls within

one of the carefully defined sets of exceptions. See Arizona v.

Hicks, 480 U.S. 321, 327 (1987); Coolidge v. New Hamp-

shire, 403 U.S. 443, 474-75 (1971). The circumstances which

excuse the failure to obtain a warrant are “ ‘few in number

and carefully delineated,’ ” where one’s home is concerned.4

4

We note that the Supreme Court recently reemphasized that the “ ‘spe-

cial needs’ ” of the workplace” constitute an exception to the general rule

that warrantless searches “ ‘are per se unreasonable under the Fourth

Amendment’. . .” Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010) (citation

and internal quotations omitted). In Quon, the Court reviewed a disagree-

ment in O’Connor v. Ortega, 480 U.S. 709 (1987), on the proper analyti-

cal framework for Fourth Amendment claims against government

employers. Quon, 130 S. Ct. at 2628. Under one approach, representing

the plurality opinion in O’Connor, the Court explained the plurality analy-

sis has two steps:

First, because “some government offices may be so open to fel-

low employees or the public that no expectation of privacy is rea-

sonable,” id., at 718, a court must consider “[t]he operational

realities of the workplace” in order to determine whether an

employee’s Fourth Amendment rights are implicated, id., at 717

. . . Next, where an employee has a legitimate privacy expecta-

tion, an employer’s intrusion on that expectation “for noninvesti-

13784 DELIA v. CITY OF RIALTO

See Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (quoting

United States v. United States District Court, 407 U.S. 297,

318 (1972)).

In this case, defendants initially attempted to conduct a

warrantless search of Delia’s house for the insulation by ask-

gatory, work-related purposes, as well as for investigations of

work-related misconduct, should be judged by the standard of

reasonableness under all the circumstances.”

Id. (quoting O’Connor, 480 U.S. at 717, 718, and 725-726). The compet-

ing approach, championed by Justice Scalia in his concurrence in

O’Connor, “dispensed with an inquiry into ‘operational realities’ and

would conclude ‘that the offices of government employees . . . are covered

by Fourth Amendment protections as a general matter.’ ” Id. (quoting

O’Connor, 480 U.S. at 731). Thus, under Justice Scalia’s approach, the

core inquiry is whether the search would be “regarded as reasonable and

normal in the private-employer context.” O’Connor, 480 U.S. at 732. If

so, the search does not violate the Fourth Amendment. Id. The Court did

not resolve this schism in Quon. Quon, 130 S. Ct. at 2628. The Quon-

O’Connor workplace warrant exception, however, has no application here.

Although the search at issue in this case arose as a result of a workplace

investigation, defendants were not seeking to search Delia’s workplace

environment, but his home. See Quon, 130 S. Ct. at 2633 (concerning

search of messages made by police officer on government owned alphanu-

meric pager); O’Connor, 480 U.S. at 712-13 (concerning search of physi-

cian’s state office and seizure of personal items from his desk and filing

cabinet). Moreover, even if the Quon-O’Connor workplace warrant excep-

tion was applicable to the search here, the search was unreasonable under

either the O’Connor plurality or Justice Scalia’s approach. Under the

O’Connor plurality approach, the search here was unjustified from the

start because there were no reasonable grounds for believing that a search

for the insulation was necessary for the investigation. Delia was being

investigated for abuse of sick leave. However, no activity restrictions were

ever placed on Delia by his treating physician as a result of his work-place

exposure to the hazardous substances. Consequently, whether or not he

installed insulation in his home was irrelevant to the investigation, since

he could install insulation in his home and still be in full compliance with

his physician’s orders. For these same reasons, we also conclude that the

search would fail to satisfy Justice Scalia’s approach because it would not

be “regarded as reasonable and normal in the private-employer context.”

O’Connor, 480 U.S. at 732.

DELIA v. CITY OF RIALTO 13785

ing for Delia’s consent. Presumably, this is because a search

conducted with the home owner’s voluntary consent is an

exception to the Fourth Amendment’s proscription on war-

rantless searches. Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973); United States v. Rubio, 727 F.2d 786, 796 (9th

Cir. 1983). Filarsky asked Delia to consent to allowing Peel

to search for the insulation. Delia, however, refused to con-

sent. Unable to obtain Delia’s consent to a warrantless search

of his house by Peel, Filarsky tried a different tactic. He

sought to obtain Delia’s consent to Delia bringing the rolls of

insulation out of his home to show Peel that they had not yet

been installed. No doubt this was done because an individual

does not have an expectation of privacy in items exposed to

the public, thereby eliminating the need for a search warrant.

See Katz v. United States, 389 U.S. 347, 351 (1967) (“[T]he

Fourth Amendment protects people, not places. What a person

knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection.”);

see also United States v. Broadhurst, 805 F.2d 849, 856 (9th

Cir. 1986) (“What a person knowingly exposes to public view

is not protected by the Fourth Amendment”). Delia, however,

again rejected Filarsky’s request.

[3] Unable to obtain Delia’s consent to search his home,

and alternatively, failing to persuade Delia to voluntarily

retrieve the insulation from his home and place it in public

view on his front lawn, Filarsky was stymied. It was only at

this juncture that Filarsky’s final move was to hatch a plan to

compel Delia to do indirectly what Filarsky and the City of

Rialto officials knew they could not directly do without

clearly violating the Fourth Amendment. Delia was ordered

to go into his house and bring out the rolls of insulation for

inspection. He was cautioned at the beginning of his interview

that his failure to cooperate with the investigation could result

in charges of insubordination and possible termination of his

employment. As a result, Chief Wells’s order “convey[ed] a

message that compliance with [his] request[ ] [was] required.”

Florida v. Bostick, 501 U.S. 429, 435 (1991). As this court

13786 DELIA v. CITY OF RIALTO

has recognized in the situation where police demand entrance

to a dwelling, “compliance with a [governmental] demand is

not consent.” United States v. Winsor, 846 F.2d 1569, 1573

n.3 (9th Cir. 1988) (en banc) (internal quotations omitted). In

Winsor, police officers decided to enter a hotel and go from

room to room looking for a robbery suspect. Id. at 1571.

“When the police knocked on the door [of the defendants’

room] and demanded that it be opened,” one of the defendants

obeyed, at which point, the police officers recognized the sus-

pect as the robber and found evidence of the robbery in plain

view. Id. This court found that the defendant had opened the

door in response to a claim of lawful authority, not voluntar-

ily. Id. at 1573. Consequently, this court held that “the police

did effect a ‘search’ when they gained visual entry into the

room through the door that was opened at their command.” Id.

Similarly, under the facts in this case, Delia was compelled to

enter his own home and retrieve the insulation for public view

by order of Chief Wells. Delia’s actions were involuntary and

coerced by the direct threat of sanctions including loss of his

firefighter position.5 Therefore, we hold that the warrantless

compelled search of Delia’s own home, requiring him to

retrieve and display the insulation in public view on his front

yard, violated Delia’s right under the Fourth Amendment to

be free from an unreasonable search of his home by his

employer.

2. Clearly established right

Having found that Delia’s Fourth Amendment rights were

violated, we turn to the second prong of the qualified immu-

5

It is well established that public employers generally cannot condition

employment on an employee’s waiver of constitutional rights. See O’Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996); Pickering

v. Board of Educ., 391 U.S. 563, 568 (1968); Vance v. Barrett, 345 F.3d

1083, 1092 (9th Cir. 2003); see also McDonell v. Hunter, 809 F.2d 1302,

1310 (8th Cir. 1987) (holding that the state may not require, as a condition

of employment, waiver of the Fourth Amendment right to be free from

unreasonable searches).

DELIA v. CITY OF RIALTO 13787

nity inquiry, whether the right was clearly established at the

time of the defendants’ misconduct. Accordingly, we must

focus on what the defendants’ knew, or should have known,

concerning Delia’s Fourth Amendment constitutional rights as

of September 18, 2006, the date of Chief Wells’s order.

Whether a right is clearly established “turns on the ‘objective

legal reasonableness of the action, assessed in light of the

legal rules that were clearly established at the time it was

taken.’ ” Pearson, 129 S. Ct. at 822 (quoting Wilson v. Layne,

526 U.S. 603, 614 (1999)); see Clouthier v. County of Contra

Costa, 591 F.3d 1232, 1241 (9th Cir. 2010); Greene v. Cam-

reta, 588 F.3d 1011, 1031 (9th Cir. 2009). Delia bears the

burden of demonstrating that the right allegedly violated was

clearly established at the time of the incident. See Greene, 588

F.3d at 1031; Robinson v. York, 566 F.3d 817, 825 (9th Cir.

2009), cert. denied, 130 S. Ct. 1047 (2010); Galen v. County

of Los Angeles, 477 F.3d 652, 665 (9th Cir. 2007). The “con-

tours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see

James, 606 F.3d at 652.

[4] This case does not fit neatly into any previous category

of Fourth Amendment law. This is best demonstrated by the

fact that no party provided any prior case law analogous to

this situation. Moreover, until today, this court had not

extended Winsor beyond situations where police demand

entrance. In attempting to demonstrate that the right allegedly

violated was clearly established at the time of Chief Wells’s

order, Delia cites several cases. These cases include this

court’s prior decision in Los Angeles Police Protective

League v. Gates, 907 F.2d 879 (9th Cir. 1990), as well as the

Supreme Court’s decisions in Uniformed Sanitation Men

Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280

(1968) and Gardner v. Broderick, 392 U.S. 273 (1968). A

review of these decisions, however, does not demonstrate that

Chief Wells’s order violated a clearly established right.

13788 DELIA v. CITY OF RIALTO

Both Supreme Court decisions concern municipal employ-

ees who were questioned about corruption in their agencies.

In Gardner, the plaintiff, a police officer, was subpoenaed to

appear before a New York County grand jury that was investi-

gating bribery and corruption of police officers in connection

with gambling operations. Gardner, 392 U.S. at 274.

Although he was informed of his privilege against self-

incrimination, the police officer was told that he would be

fired if he did not sign a waiver of immunity. Id. After he

refused to sign the waiver, he was fired. Id. at 274-75. The

Court held that the plaintiff was discharged “not for failure to

answer relevant questions about his official duties, but for

refusal to waive a constitutional right. . . . He was dismissed

solely for his refusal to waive the immunity to which he is

entitled if he is required to testify despite his constitutional

privilege.” Id. at 278.

[5] The Court reached an identical conclusion in Uni-

formed Sanitation Men, decided the same day as Gardner. In

Uniformed Sanitation Men, fifteen sanitation workers were

summoned to appear at a hearing conducted by a commis-

sioner of investigations. The commissioner was investigating

charges that sanitation department employees were not charg-

ing certain fees and were keeping other fees for themselves.

Uniformed Sanitation Men Ass’n, Inc., 392 U.S. at 281. Each

sanitation employee was told that if he refused to testify “his

employment and eligibility for other city employment would

terminate.” Uniformed Sanitation Men Ass’n, Inc. 392 U.S. at

282. Twelve workers refused to answer, invoking their privi-

lege against self-incrimination, and were discharged. Id. The

remaining three workers answered questions at the hearing.

They were subsequently suspended as a result of “information

received from the Commissioner of Investigation concerning

irregularities arising out of (their) employment in the Depart-

ment of Sanitation.” Id. The three workers were later sum-

moned before a grand jury and asked to sign waivers of

immunity. Id. They refused and were fired solely for refusing

to sign waivers of immunity. Id. at 282-83. The Supreme

DELIA v. CITY OF RIALTO 13789

Court held all the discharges unconstitutional, noting that,

“[the sanitation workers] were not discharged merely for

refusal to account for their conduct as employees of the city.

They were dismissed for invoking and refusing to waive their

constitutional right against self-incrimination.” Id. at 283.

Thus, in both Gardner and Uniformed Sanitation Men, the

Court held that public agencies may not impair an individu-

al’s privilege against self-incrimination by compelling incrim-

inating answers, or by requiring a waiver of immunity. See

id.; Gardner, 392 U.S. at 278. Neither case involved the legal-

ity of a search under the Fourth Amendment. Accordingly,

neither Gardner nor Uniformed Sanitation Men would have

put defendants on notice that Chief Wells’s order to Delia,

with no attendant threat to his employment, constituted a vio-

lation of the Fourth Amendment.

[6] Delia also cites this court’s decision in Gates. In Gates,

a police officer was served with an administrative warrant to

search his garage. Gates, 907 F.2d at 883. When the plaintiff

refused to permit the search, he was fired for insubordination.

Id. Relying on the Supreme Court’s decisions in Gardner and

Uniformed Sanitation Men, this court held that the plaintiff

“could not be disciplined when he refused to allow the appel-

lants to violate his constitutional rights. As the Supreme Court

has pointed out, it is not proper to discharge an officer from

duty in order to punish that officer for exercising rights guar-

anteed to him under the constitution.” Id. at 886. Thus, the

Gates decision did not concern the legality of an actual

search, let alone a “search” under circumstances similar to

this case. As a result, the Gates decision, like the Supreme

Court’s decisions in Gardner and Uniformed Sanitation Men,

would hardly have put defendants on notice that their conduct

here violated the Fourth Amendment. Thus, Delia has not

demonstrated that a constitutional right was clearly estab-

lished as of the date of Chief Wells’s order, such that defen-

dants would have known that their actions were unlawful.

Accordingly, we affirm the district court’s grant of summary

13790 DELIA v. CITY OF RIALTO

judgment in favor of Chief Wells, Peel, and Bekker on the

ground of qualified immunity.

B. Qualified Immunity—Filarsky

[7] We next take up the issue of whether Filarsky, too, is

entitled to qualified immunity. Unlike the other individual

defendants in this case, Filarsky is not an employee of the

City. Instead, he is a private attorney, who was retained by the

City to participate in internal affairs investigations. Delia con-

tends that Filarsky, as a private attorney, is not entitled to

qualified immunity. Filarsky, on the other hand, argues that

this is a distinction without a difference. He urges this court

to follow the Sixth Circuit Court of Appeals’s decision in Cul-

linan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997), and

hold that he is entitled to qualified immunity. In Cullinan, the

Sixth Circuit held that a law firm that had been hired by the

City of Louisville to serve as outside counsel was entitled to

qualified immunity against plaintiffs’ § 1983 claims. Id. The

court succinctly concluded: “We see no good reason to hold

the city’s in-house counsel eligible for qualified immunity and

not the city’s outside counsel.” Id. In arriving at this conclu-

sion, the court of appeals relied exclusively on dictum in

Richardson v. McKnight, 521 U.S. 399, 407 (1997), that “the

common law ‘did provide a kind of immunity for certain pri-

vate defendants, such as doctors or lawyers who performed

services at the behest of the sovereign.’ ” Cullinan, 128 F.3d

at 310.

[8] The hitch in Delia’s argument is that we are not free to

follow the Cullinan decision. We are “bound by prior panel

opinions ‘unless an en banc decision, Supreme Court decision

or subsequent legislation undermines those decisions.’ ” In re

Findley, 593 F.3d 1048, 1050 (9th Cir. 2010) (quoting

Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir.

1994); Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir.

2007) (“Ordinarily, panels cannot overrule a circuit precedent;

that power is reserved to the circuit court sitting en banc.”).

DELIA v. CITY OF RIALTO 13791

In Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), another

panel of this court held that a private attorney representing a

county was not entitled to qualified immunity. Id. at 834-35.

In Gonzalez, the defendant, a private attorney, was retained to

defend Los Angeles County in an underlying civil rights suit

brought by the plaintiff. Id. at 834. The attorney accessed the

plaintiff’s juvenile court file without notifying him and with-

out obtaining authorization from the juvenile court. Id. The

attorney employed information from the file in deposing the

plaintiff. Id. The plaintiff brought suit against the attorney, her

law firm, and the county “for accessing and using his juvenile

court file without authorization.” Id. The plaintiff alleged that

this conduct constituted a violation of his Fourth and Four-

teenth Amendment rights. Id. In rejecting the attorney’s claim

of qualified immunity, this court reasoned, “[the attorney] is

not entitled to qualified immunity. She is a private party, not

a government employee, and she has pointed to ‘no special

reasons significantly favoring an extension of governmental

immunity’ to private parties in her position.” Id. at 835 (quot-

ing Richardson, 521 U.S. at 412); see Wyatt v. Cole, 504 U.S.

158, 168-69 (1992) (holding that private defendants in § 1983

suit for “invoking a state replevin, garnishment, or attachment

statute” later declared unconstitutional were not entitled to

qualified immunity from suit); cf. Pollard v. The GEO Group,

Inc., 607 F.3d 583, 602 (9th Cir. 2010) (observing that

“[u]nlike officers employed by public prisons,” employees of

a private corporation operating a federal prison would not be

entitled to qualified immunity in Bivens cause of action);

Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (holding

that “the common law did not provide immunity to private

attorneys conspiring with a judge to deprive someone of their

constitutional rights”). Filarsky does not allege any interven-

ing en banc decision, Supreme Court decision, or intervening

legislation which would permit us to overrule the holding in

Gonzalez. Therefore, we are bound by the Gonzalez decision.

Accordingly, Filarsky is not entitled to qualified immunity as

a private attorney and we reverse the district court’s grant of

13792 DELIA v. CITY OF RIALTO

summary judgment in his favor and remand for trial, or fur-

ther proceedings as determined by the district court.6

C. Municipal Liability

[9] Finally, we consider whether the City may be held lia-

ble under § 1983 for the individual defendants’ actions. The

City may be held liable under § 1983 for its employees’

actions where one of its customs or policies caused a violation

of Delia’s constitutional rights. Monell, 436 U.S. at 690-91.

In Monell, the United States Supreme Court held that munici-

palities are “persons” subject to damages liability under

§ 1983 where it has caused a constitutional tort through “a

policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.” Id. at 690.

The Court further observed that § 1983 also authorizes suit

“for constitutional deprivations visited pursuant to govern-

mental ‘custom’ even though such a custom has not received

formal approval through the body’s official decisionmaking

channels.” Id. at 690-691. The Court, however, specifically

rejected the use of the doctrine of respondeat superior to hold

a municipality liable for the unconstitutional acts of its

employees. The Court instructed that municipalities could be

held liable only when an injury was inflicted by a city’s “law-

makers or by those whose edicts or acts may fairly be said to

represent official policy.” Id. at 694. “[T]he touchstone of

‘official policy’ is designed ‘to distinguish acts of the munici-

6

We are skeptical of the district court’s oral holding that Filarsky has

no responsibility for the deprivation of Delia’s Fourth Amendment rights

which occurred in this case. We leave to the district court on remand to

determine Filarsky’s liability consistent with this opinion. We do note that

searches by private parties are subject to the Fourth Amendment if private

parties act as agents of the government. Skinner v. Railway Labor Execu-

tives’ Assn, 489 U.S. 602, 614 (1989); United States v. Young, 153 F.3d

1079, 1080 (9th Cir. 1998). Under § 1983, private parties acting under

color of state law can be held liable for violations of federal constitutional

rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Frank-

lin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002).

DELIA v. CITY OF RIALTO 13793

pality from acts of employees of the municipality, and thereby

make clear that municipal liability is limited to action for

which the municipality is actually responsible.’ ” City of St.

Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (Brennan, J.,

concurring) (quoting Pembaur v. City of Cincinnati, 475 U.S.

469, 479-80 (1986)) (emphasis in Pembaur).

Even in the absence of an official policy or a custom, the

Supreme Court has held that “an unconstitutional government

policy could be inferred from a single decision taken by the

highest officials responsible for setting policy in that area of

the government’s business.” Praprotnik, 485 U.S. at 123.

Under this paradigm, however, “[m]unicipal liability attaches

only where the decisionmaker possesses final authority to

establish municipal policy with respect to the action ordered.”

Pembaur, 475 U.S. at 481.

[10] Thus, in order to establish an official policy or custom

sufficient for Monell liability, a plaintiff must show a consti-

tutional right violation resulting from (1) an employee acting

pursuant to an expressly adopted official policy; (2) an

employee acting pursuant to a longstanding practice or cus-

tom; or (3) an employee acting as a “final policymaker.”

Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003); see

Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-

85 (9th Cir. 2002); Gillette v. Delmore, 979 F.2d 1342, 1346-

47 (9th Cir. 1992). Delia has not directed us to any policy,

officially adopted and promulgated by the City. Nor has he

established a practice, so permanent and well-settled so as to

constitute a custom, that existed and through which Chief

Wells acted in ordering Delia to produce the rolls of insula-

tion. See Praprotnik, 485 U.S. at 121. Indeed, Delia does not

suggest that defendants were acting pursuant to an express

official policy or a longstanding practice or custom.

[11] This leaves only the third means of establishing

municipal liability available to Delia, that he was injured by

an employee of the City with “final policymaking authority.”

13794 DELIA v. CITY OF RIALTO

Id. at 123. Delia asserts that the individual defendants, and

Chief Wells in particular, were acting as final policymakers

when ordering him to produce the rolls of insulation. In

response, the City argues that none of the individual defen-

dants had final policymaking authority. “[W]hether a particu-

lar official has ‘final policymaking authority’ is a question of

state law.” Praprotnik, 485 U.S. at 124; see Pembaur, 475

U.S. at 483 (noting that “[a]uthority to make municipal policy

may be granted directly by a legislative enactment or may be

delegated by an official who possesses such authority”); Jett

v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)

(“’whether a particular official has ‘final policymaking

authority’ is a question of state law.’ ”) (quoting Praprotnik,

485 U.S. at 123); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.

2004) (“To determine whether a school district employee is a

final policymaker, we look first to state law.”).

[12] Review of the City’s Code of Ordinances reveals that

the Fire Chief has not been delegated final policymaking

authority regarding any practices for the City’s Fire Depart-

ment. Instead, the City Council is vested with exclusive final

policymaking authority for the Fire Department. Rialto Ordi-

nance Chapter 2.34 governs the City’s Fire Department. Sec-

tion 2.34.020 provides:

The fire department is a department within the

framework of the city’s administrative organization

and is governed by state and federal laws pertaining

thereto and the ordinances, policies and procedures

established by the city council.

RIALTO, CAL., ORDINANCES § 2.34.020 (emphasis added). Sec-

tion 2.34.030, which concerns the establishment of a Fire

Chief, provides:

There is a chief of the fire department who is sub-

ject to the general supervision of the city administra-

tor and with the approval of the city council, solely

DELIA v. CITY OF RIALTO 13795

responsible for the management and conduct of the

department.

RIALTO, CAL., ORDINANCES § 2.34.030 (emphasis added).

Finally, § 2.34.040 specifies the duties of the City’s Fire

Chief, providing in pertinent part as follows:

The duties of the fire chief include, but are not

limited to, the following:

A. To formulate and recommend policies and pro-

cedures pertaining to the enforcement of rules

and regulations for the government and opera-

tion of the fire department and pertaining to the

prevention and control of fires; to administer

such policies and procedures when approved

and to conduct such activities for the city;

....

H. To carry out such other affairs and assignments

as he/she is assigned by the city council by res-

olution, or to carry out other functions as

described of the fire chief in other provisions of

this code;

I. To be responsible for the general supervision and

administration of the fire safety division.

RIALTO, CAL., ORDINANCES § 2.34.020 (emphasis added).

[13] Thus, under these ordinances, even though Chief

Wells had final authority over the fire department’s day-to-

day supervision and administration, he was not authorized to

establish city policy. In Pembaur, the Supreme Court distin-

guished final policymaking authority from final decisionmak-

ing authority, observing that:

13796 DELIA v. CITY OF RIALTO

The fact that a particular official-even a policymak-

ing official-has discretion in the exercise of particu-

lar functions does not, without more, give rise to

municipal liability based on an exercise of that dis-

cretion. The official must also be responsible for

establishing final government policy respecting such

activity before the municipality can be held liable.

Pembaur, 475 U.S. at 481-83 (citations and footnote omitted).

To drive home this point, the Court offered the following

illustration:

Thus, for example, the County Sheriff may have dis-

cretion to hire and fire employees without also being

the county official responsible for establishing

county employment policy. If this were the case, the

Sheriff’s decisions respecting employment would

not give rise to municipal liability, although similar

decisions with respect to law enforcement practices,

over which the Sheriff is the official policymaker,

would give rise to municipal liability. Instead, if

county employment policy was set by the Board of

County Commissioners, only that body’s decisions

would provide a basis for county liability. This

would be true even if the Board left the Sheriff dis-

cretion to hire and fire employees and the Sheriff

exercised that discretion in an unconstitutional man-

ner; the decision to act unlawfully would not be a

decision of the Board. However, if the Board dele-

gated its power to establish final employment policy

to the Sheriff, the Sheriff’s decisions would represent

county policy and could give rise to municipal liabil-

ity.

Pembaur, 475 U.S. at 483 n.12.

The facts here mirror the Pembaur illustration. Chief Wells

clearly had supervisory and final decisionmaking authority

DELIA v. CITY OF RIALTO 13797

over the City’s Fire Department. In that capacity, he signed

the order requiring Delia to produce the rolls of insulation.

The record, however, is devoid of any evidence that Chief

Wells’s authority included responsibility for establishing final

departmental policy. To the contrary, the City’s Code of Ordi-

nances places policymaking authority for the fire department

in the exclusive hands of the city council. See RIALTO, CAL.,

ORDINANCES §§ 2.34.020, 2.34.030. Thus, only the city coun-

cil’s decisions would provide a basis for city liability. No

such decisions appear in the record. As the Supreme Court

cautioned in Praprotnik, “a federal court would not be justi-

fied in assuming that municipal policymaking authority lies

somewhere other than where the applicable law purports to

put it.” Praprotnik, 485 U.S. at 128.

Delia directs our attention to the fact that Chief Wells did

not provide the city administrator with a copy of his order to

Delia as evidence that he wielded final policymaking author-

ity. This argument confuses final decisionmaking authority

with final policymaking authority. While Chief Wells wielded

the former, only the latter is sufficient to hold the City liable

under § 1983 for his actions. See Pembaur, 475 U.S. at 483

& n.12. Indeed, if we were to accept the evidence in this case

as establishing Monell liability, “the result would be indistin-

guishable from respondeat superior liability.” Praprotnik, 485

U.S. at 126 (cautioning that “[i]f the mere exercise of discre-

tion by an employee could give rise to a constitutional viola-

tion, the result would be indistinguishable from respondeat

superior liability.”); see Clouthier, 591 F.3d at 1253 (noting

that “ ‘[t]o hold cities liable under section 1983 whenever

policymakers fail to overrule the unconstitutional discretion-

ary acts of subordinates would simply smuggle respondeat

superior liability into section 1983 law [creating an] end run

around Monell.’ ”) (quoting Gillette, 979 F.2d at 1348).

Accordingly, we conclude that the evidence here fails to

establish that Chief Wells had final policymaking authority.

Our conclusion is buttressed by cases from this court as

well as our sister circuits. In Gillette, 979 F.2d 1342, this

13798 DELIA v. CITY OF RIALTO

court held a fire chief’s actions in firing the plaintiff could not

constitute the basis for municipal liability because the fire

chief was not a final policymaker. Id. at 1350. In arriving at

this conclusion, this court observed that the fire chief’s discre-

tionary authority to hire and fire employees, standing alone,

was “not sufficient to establish a basis for municipal liability.”

Id. This court also noted the fact that the “City Charter and

ordinances grant authority to make City employment policy

only to the City Manager and the City Council.” Id. (emphasis

added). In the absence of any evidence that the fire chief actu-

ally made policy, this court found that he was not a final poli-

cymaker. Id.; see Collins v. City of San Diego, 841 F.2d 337,

341-42 (9th Cir. 1988) (holding city was not liable for

employment actions of police sergeant, even though police

sergeant had “discretion to recommend hiring, firing, and dis-

cipline of employees”, where he was not the city official

responsible for establishing final departmental employment

policy). The Eighth Circuit Court of Appeals reached the

same conclusion in Davison v. City of Minneapolis, 490 F.3d

648, 661 (8th Cir. 2007). In Davison, the court held that there

was insufficient evidence to subject the city to Monell liability

for the actions of its fire chief. Id. In reaching this conclusion,

the court noted that although the fire chief had final decision-

making authority regarding employment promotions, there

was no evidence that he was also delegated with authority to

make final municipal policy regarding employment practices.

Id.; see Bechtel v. City of Belton, 250 F.3d 1157, 1161 (8th

Cir. 2001) (holding that city fire chief whose authority over

the operations of the fire department was subject to review by

the city administrator “had no authority as the ‘highest official

responsible for setting policy.’ ”).

[14] Likewise, in Greensboro Prof’l Fire Fighters Ass’n,

Local 3157 v. City of Greensboro, 64 F.3d 962 (4th Cir.

1995), the Fourth Circuit Court of Appeals arrived at the iden-

tical determination. In that case, a firefighter sued the City of

Greensboro under § 1983, alleging retaliation by the fire chief

because of the firefighter’s union participation. Id. at 963-64.

DELIA v. CITY OF RIALTO 13799

The fire chief had failed to promote him despite the fact that

he had the highest score on the promotions list. Id. Examining

relevant state and city laws, the Fourth Circuit found that

“ ‘final policymaking authority’ over employer-employee

relations in the City of Greensboro rests only with the City

Council and the City Manager.” Id. at 965-66. Accordingly,

the court held that even though the fire chief may have had

final authority to determine whom to promote, he was not

authorized to adopt a “municipal policy embodying anti-union

animus.” Id.; see Crowley v. Prince George’s County, 890

F.2d 683, 685-86 (4th Cir. 1989) (holding that although a

county police chief was responsible for personnel decisions

within the police department, he did not have “final policy-

making authority” that would impute liability to the county

under 42 U.S.C. § 1981). Similarly, in this case, there is a

total absence of any policymaking authority delegated to

Chief Wells by the City’s Code of Ordinances. Chief Wells’s

final decisionmaking authority regarding whether to order

Delia to produce the rolls of insulation, standing alone, is

insufficient to subject the City to liability for his action.

Accordingly, we affirm the district court’s grant of summary

judgment in the City’s favor.

IV. CONCLUSION

Upon de novo review, we hold that Delia’s Fourth Amend-

ment rights were violated when Chief Wells, Peel, and Bekker

affected a warrantless “search” of Delia’s home by ordering

Delia to go into his home and bring out the rolls of insulation

for inspection. Because Delia’s actions were involuntary and

occurred as a result of the direct threat of sanctions, we hold

that the warrantless compelled search of Delia’s home vio-

lated his rights under the Fourth Amendment. Nevertheless,

we conclude that these defendants are entitled to qualified

immunity because Delia has not established that this constitu-

tional right was clearly established at the time of Chief

Wells’s order to Delia. We therefore affirm the district court’s

grant of summary judgment on their behalf. We further con-

13800 DELIA v. CITY OF RIALTO

clude that Filarsky is not entitled to qualified immunity as a

private attorney. Thus, we reverse the district court’s grant of

summary judgment in his favor and remand for trial or further

proceedings consistent with this opinion. Finally, we conclude

that neither Chief Wells, nor any of the other individual

defendants, had final policymaking authority for the City.

Therefore, we affirm the district court’s grant of summary

judgment in favor of the City.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED

Each party is to bear its own costs on appeal.