# Record and brief — Filarsky v. Delia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 2012
- **Citation:** 566 U.S. 377

## Text

No. 10-1018
Title

Docketed:
Lower Ct:
Case Nos:.:

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i
vm

SUPREME COURT

OF THE UNITED S8TATES

Steve A. Filarsky, Petitioner
V
Nicholas B. Delia

February 10, 2011
United States Court of Appeals for the Ninth Circuit
(09-55514)

Decision Date: September 9, 2010
Rehearing Denied: November 8, 2010

Questions
Presented

Feb 3 2011

Mar 10 2011
Mar 30 2011
Apr 11 2011
Apr 21 2011
Jun 10 2011
Jun 20 2011
Jun 22 2011
Sep 27 2011
Nov 14 2011
Nov 14 2011
Nov 14 2011
Nov 18 2011
Nov 18 2011
Nov 21 2011
Nov 21 2011
Nov 21 2011
Nov 21 2011
Nov 21 2011
Dec 9 2011

Dec 14 2011
Dec 20 2011
Jan 6 2012

~~~~~~~Proceedings and Orders
Petition for a writ of certiorari filed. (Response due March 14, 2011)

Brief amici curiae of League of California Cities, et al. filed.

DISTRIBUTED for Conference of April 15, 2011.

Response Requested . (Due May 11, 2011)

Order extending time to file response to petition to and including June 10, 2011
Brief of respondent Nicholas B. Delia in opposition filed

Reply of petitioner Steve —_ Filarsky filed. (Distributed)

DISTRIBUTED for Conference of September 26, 2011

Petition GRANTED.

SET FOR ARGUMENT ON Tuesday, January 17, 2012

Joint appendix filed. (Statement of costs filed)

Brief of petitioner Steve A. Filarsky filed.

CIRCULATED.

Brief amici curiae of League of California Cities, et al. filed. (Distributed)

Brief amiv.s curiae of United States filed. (Distributed)

Brief amicus curiae of American Bar Association filed. (Distributed)

Brief amicus curiae of DRI-The Voice of The Defense Bar filed. (Distributed)
Brief amici curiae of Kansas and Other States filed. (Distributed)

Brief amici curiae of National School Boards Association, et al. filed. (Distributed)

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae
and for divided argument filed.

Brief of respondent Nicholas B. Delia filed. (Distributed)
Brief amicus curiae of The American Association for Justice filed. (Distributed)
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae

and for divided argument GRANTED.

Jan 10 2012 Reply of petitioner Steve A. Filarsky filed. (Distributed)

Jan 17 2012 Argued. For petitioner: Patricia A. Millett, Washington, D. C., Nicole A. Saharsky,
Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United
States, as amicus curiae.) For respondent: Michael A. McGill, Upland, Cal!

Apr 17 2012 Judgment REVERSED. Roberts, C. J., delivered the opinion for a unanimous Court.
Ginsburg, J.. and Sotomayor, J., filed concurring opinions.

PETITION
FOR

WRIT OF

CERTIORARI

T>

srame Court, U.S.
TLE D

No. 19101 8 FEB 3~ 208

———EEE

a — 7 mA

Bn The
Supreme Court of the Anited States

ie janie

STEVE A. FILARSKY, ESQ..

Petitioner.

y
NICHOLAS B. DELIA,
Respondent.

sumnitiiicitiiniiinniataly avdinintains

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

+

JON H. TISDALE
Counsel of Record
JENNIFER CALDERON
GILBERT, KELLY. CROWLEY & JENNETT LLP
1055 West Seventh Street
Suite 2000
Los Angeles, California 9OOL7
(213) 615-7000
jht@gilbertkelly.com
jealderon@gilbertkelly.com
Counsel for Petitioner

COCKLE LAW BRIEF PRINTING, CO) Cet ey oma
OH CALL COLLECT « eres 212-284)

QUESTION PRESENTED FOR REVIEW

In Richardson v. McKnight, 521 U.S. 399, 408
(1997), a bare majority of this Court declined to
extend qualified immunity to private prison guards,
but expressly noted a historical basis of immunity for
private lawyers working “at the behest of the sover-
eign.” Id. at 407. The Richardson majority also ex-
pressly did not preclude qualified immunity for
private parties working as “adjunct(s| to govern-
ment.” Jd. at 413. Based on Richardson, the Sixth
Circuit has accorded immunity to such “private”
lawyers. Cullinan v. Abramson, 128 F.3d 301 (6th Cir.
1997). Contravening Richardson and expressly disa-
greeing with Cullinan, the Ninth Circuit in this case
denied qualified immunity to a “private” lawyer
retained by the government solely because of his
“private” status, even though it accorded qualified
immunity to all of the individual government actors
involved, thereby completely exonerating them for
the very same conduct, which did not violate any
clearly established rights. App., infra, 4-5, 12-24. The
question thus presented is:

Whether a lawyer retained to work with govern-
ment employees in conducting an internal affairs
investigation is precluded from asserting qualified
immunity solely because of his status as a “private”
lawyer rather than a government employee.

it
PARTIES TO THE PROCEEDING

Petitioner (defendant and appellee below):
STEVE A. FILARSKY, ESQ.

Respondent (plaintiff and appellant below):
NICHOLAS B. DELIA

Additional defendants and appellees below:
CITY OF RIALTO, a Public Entity; CITY OF RIALTO
FIRE DEPARTMENT, a Public Agency; STEPHEN C.
WELLS, Individually and as the Fire Chief of the
City of Rialto; MIKE PEEL, Individually and as the
Battalion Chief for the City of Rialto; FRANK
BEKKER, Individually and as the Battalion Chief for
the City of Rialto. These defendants were parties to
the underlying Ninth Circuit decision; however, they
no longer have an interest in the case as the Ninth
Circuit upheld their grant of summary judgment
based upon an extension of qualified immunity.

il

TABLE OF CONTENTS

Page
QUESTION PRESENTED FOR REVIEW............ i
PARTIES TO THE PROCEEDING ........................ il
I ccs ccacocnenacsnevseevedooeecetdiniccecescs 1
casa pares sasemenearinveses 1
CONSTITUTIONAL AND STATUTORY PROVI-
I i ccansctncndumsaseansdédavestsecesesseoes 2
STATEMENT OF THE CASE................... enskenepeeies 3
REASONS TO GRANT THE PETITION .............. 11

I.

THE NINTH CIRCUIT OPINION CON-
TRAVENES THIS COURTS DECISION
ON QUALIFIED IMMUNITY, UNDER THE
RICHARDSON FACTORS, AS TO GOV-
ERNMENT-RETAINED “PRIVATE” LAW-
YERS WHO ARE “ACTING AT THE
BEHEST OF THE SOVEREIGN” BY
SERVING AS AN “ADJUNCT TO GOV-
ERNMENT IN AN ESSENTIAL GOV-
ERNMENTAL ACTIVITY” AND “ACTING
UNDER CLOSE OFFICIAL SUPER-
TEE hinsininiinsciiubtsrsieresesversesscesausees

A. Under The Richardson Majority Opin-
ion, Petitioner Filarsky Is Entitled To
Qualified Immunity In Light Of This
Court’s Reference To Historical Im-
munity For Lawyers Working “At The
Behest Of The Sovereign” .....................

lV

TABLE OF CONTENTS -— Continued
Page

B. The Richardson Majority Expressly
Did Not Preclude Qualified Immunity
For An Individual Working With The
Government In An Essential Govern-
ment Activity, And Under Close Super.
vision, Such As Petitioner Filarsky ...... 20

C. Even Under The Richardson Dissent’s
Functional Approach, Petitioner Filarsky
Is Entitled To Qualified Immunity ....... 26

ii. THE NINTH CIRCUIT OPINION CRE-
ATES A CIRCUIT SPLIT ON THE DOC-
TRINE OF QUALIFIED IMMUNITY BY
CATEGORICALLY DENYING QUALIFIED
IMMUNITY TO ALL GOVERNMENT-
RETAINED “PRIVATE” LAWYERS............ 30

CP NRT su ccctaididebnselaceyceutidanceuscovedsveciascdeeusane 35

APPENDIX

Ninth Circuit Order denying rehearing en banc
and Amended Opinion — reported at 621 F.3d
I Ce Ge BD invecrtr sencnceescccpsckeninastnsececsedes App. 1

Opinion of the United States District Court for
the Central District of California, including
the Judgment and Statement of Uncontro-
verted Facts......... spits dgehigt doh eoeelal peiueahialeielanae panaaeanS App. 39

United States District Court for the Central
District of California grant of Summary
ys cs scsi usc nntinctonsesvssiawsecosbatenins seueemanaeas App. 50

TABLE OF CONTENTS — Continued
Page

Petitioner Steve A. Filarsky, Esq.’s Motion for
Summary Judgment, or in the alternative
TI GIN sic crscrsculrcinicc seis cccccaseeesiiniseonan App. 52

Peutioner Steve A. Filarsky, Esq.’s Declaration
in support of his Motion for Summary Judg-
ment, or in the alternative summary adjudi-
IR ilaecaiscad checiconrenamtesieinei acess anor beck ks App. 87

vi
TABLE OF AUTHORITIES

FEDERAL CASES
Bartell v. Lohiser, 215 F.3d 550 (6th Cir. 2000)......... 12

Cottingham v. Policy Studios Inc., 2008 U.S.
Dist. LEXIS 23145-7 (U.S. Dist. Ct. for the
Middle Dist. of Tennessee, Nashville Dist.

REE ED Gente cS ES mb ea Santa SF Rated bad ABE CNIS E TS 12
Cullinan v. Abramson, 128 F.3d 301 (6th Cir.

PEP kcniicaiiaruihibalinanniecdabbnabnccndamadcuiianisan elaiantaeus passim
Delia v. City of Rialto, 621 F.3d 1069 (9th Cir.

EIRENE SPST ER Re ee SRN SCN CeIn LUND SCNT LIES 1
Eagon ex rel. Eagon v. City of Elk City, 72 F.3d

Se Is: UII attic sas oparcnac cu snncnccinresenbooiaed 13
Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.

SEETND diiccasenkapunrinscisuinesbencaciilmieatinndsatsinmueseien passim

Lee v. Wyatt, 2009 U.S. Dist. LEXIS 47357
(U.S. Dist. Ct. for the Western Dist. of Okla-

IIE FINI sessitncennerscicipechnssituceeuciaerbandeboatecarhenentiscnian 13
Richardson v. McKnight, 521 U.S. 399 (1997).... passim
Tower v. Glover, 467 U.S. 914 (1984)...000000 0... 15, 18
Wyait v. Cole, 504 U.S. 158 (1992)............................. 17

CONSTITUTIONAL PROVISIONS AND FEDERAL STATUTES
Te dees. I, SI TI oo caccesccicatsssacscnnenccensadeenctans 2.7,33

vil

TABLE OF AUTHORITIES —- Continued

Page
EE cas SE Wicncctscnncdatventescccdoseanscocces passim
Federal Rules of Civil Procedure, Rule 12................. 30

MISCELLANEOUS

J. Bishop, Commentaries on Non-Contract Law
Se is. © ee ED dasincinctenucpuninesncaguiesicnimaienibaunensenes 15

123 Harvard Law Review 1266, Developments
in the Law: State Action and the Public Pri-
vate Distinction: Private Party Immunity
from Section 1983 Suits (March 2010)................... 34

1

Petitioner, Steve A. Filarsky, Esq. (hereinafter
referred to as “Petitioner Filarsky”) respectfully
petitions for a writ of certiorari to review the judg-
ment of the United States Court of Appeals for the
Ninth Circuit.

+

OPINIONS BELOW

The Ninth Circuit’s Order denying rehearing en
banc and amended opinion are reported at 621 F.3d
1069 (9th Cir. 2010). App., infra, 1-38. The Opinion of
the United States District Court for the Central
District of California, including the Judgment and
Statement of Uncontroverted Facts, is not reported
and is included in the Appendix at pages 39-51.

¢

JURISDICTION

The Ninth Circuit issued its decision on Septem-
ber 9, 2010. Petitioner Filarsky timely filed a petition
for rehearing en banc, which was denied on Novem-
ber 8, 2010. App., infra, 1-38. This Court has jurisdic-
tion under 28 U.S.C. section 1254(1).

¢

92

—

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United States
Constitution provides:

The 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 placed to be searched, and the persons or
things to be seized. U.S. Const. amend. IV.

Section One of the Fourteenth Amendment to the
United States Constitution provides:

Section 1. All persons born or naturalized in
the United States and subject to the jurisdic-
tion thereof, are citizens of the United States
and of the State wherein they reside. No
State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor de-
ny to any person within its jurisdiction the
equal protection of the laws. U.S. Const.
amend. XIV.

Section 1983 of Title 42 of the United States Code
provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of

3

Columbia, subjects, or causes to be subjected,
any citizen of the United States or other per-
son within the jurisdiction thereof to the
deprivation of any rights, privileges, or im-
munities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress, except that in
any action brought against a judicial officer
for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was vio-
lated or declaratory relief was unavailable.
For the purposes of this section, any Act of
Congress applicable exclusively to the Dis-
trict of Columbia shall be considered to be a
statute of the District of Columbia. 42 U.S.C.
section 1983.

¢

STATEMENT OF THE CASE

1. Petitioner Filarsky is a private attorney who
performed services at the behest of the City of Rialto,
a public municipality organized under the laws of the
State of California (hereinafter referred to as the
“City”). App., infra, 6-7, 54, 59, 88-89. The City re-
tained Petitioner Filarsky to provide labor and em-
ployment law guidance, including participation in
internal affairs investigations involving City em-
ployees. App., infra, 6-7, 54, 59, 88-89. In participat-
ing in such internal investigations on behalf of
the City, Petitioner Filarsky acted under color of
state law and within the course and scope of his

4

employment with the City. App., infra, 6-7, 54, 58-59,
58-89.

On Sepiember 18, 2006, an interview of Re-
spondent Nicholas B. Delia, a firefighter for the City
(hereinafter referred to as “Respondent Delia”), was
conducted in connection with an internal investiga-
tion; the subject matter of the investigation was the
suspected inappropriate use of “sick time” by Re-
spondent Delia to work on a home remodeling project.
App., infra, 6-8, 60, 89-90. Battalion Chiefs Mike Peel
and Frank Bekker, Respondent Delia’s attorney
Stuart Adams, and Petitioner Filarsky were present
(hereinafter collectively referred to as “Battalion
Chiefs”). App., infra, 7, 58, 90. On behalf of the City,
Petitioner Filarsky was investigating Respondent
Delia after the City obtained a sub rosa videotape
which depicted him purchasing building materials
(hereinafter “Subject Building Materials”) and un-
loading them at his home on a “sick” day. App., infra,
6, 60, 89. Petitioner Filarsky was retained by the City
as legal counsel because of his experience in person-
ne] and internal affairs matters. App., infra, 6, 59, 88-
89.

Petitioner Filarsky has conducted numerous
investigations on behalf of the City over the past
fourteen years, and was routinely expected to conduct
not only the investigation and interviews, but to
provide legal analysis, propose alternative discipli-
nary actions, draft correspondence regarding discipli-
nary actions directed by City employees, and to

o

participate in legal proceedings and hearings. App.,
infra, 6-7, 58-59, 88-90.

During the interview on September 18, 2006,
Respondent Delia offered in his defense that he had
not incorporated the Subject Building Materials into
his home remodeling project and that the Subject
Building Materials remained unused at his residence.
App., infra, 7, 60, 90.

After a short meeting, the City authorized Peti-
tioner Filarsky to inform Respondent Delia that if he
would simply show the Battalion Chiefs the Subject
Building Materials to validate his explanation, the
investigation would be over and it would be resolved
in Respondent Delia’s favor with no disciplinary
action whcitsoever. App., infra, 7-8; 60-61, 90-91.
Thereafter, Petitioner Filarsky so advised Respondent
Delia. App., infra, 7-8, 60-61, 90-91.

During the interview, Respondent Delia was
represented by attorney Stuart Adams; when Re-
spondent Delia was asked to show the Subject Build-
ing Materials to his superiors, Adams advised
Respondent Delia to refuse to .produce the Subject
Building Materials. App., infra, 8, 61-62, 91. Based on
advice of counsel, Respondent Delia then declined to
comply. App., infra, 8, 61-62, 91. The request was
then clarified in the interview by Petitioner Filarsky,
who indicated that the City had no desire or intention
of going inside Respondent Delia’s home at all but
rather wanted him to simply bring out a sample of
the unused Subject Building Materials to the front

6

yard for visual verification to validate his story. App.,
infra, 8, 61-62, 91. Again, attorney Adams advised
Respondent Delia to refuse to comply, even though it
was expressly represented that the production of the
Subject Building Materials would completely and
immediately exonerate Respondent Delia. App., infra,
61-63, 91-92. Accordingly, Respondent Delia refused
to comply. App., infra, 8, 61-63, 91-92.

Ultimately, Fire Chief Stephen C. Wells con-
verted the request to produce the Subject Building
Materials into a written order (hereinafter referred to
as the “Order”) and signed it, as Petitioner Filarsky
had no authority to make such an order, unilaterally
or otherwise. Petitioner Filarsky conveyed the Order
to Respondent Delia and to Respondent Delia’s coun-
sel. App., infra, 8, 61-63, 91-92. At no point in time
before or after the Order was issued was Respondent
Delia ever threatened with insubordination and/or
termination. App., infra, 63, 92-93.

Prior to conveying the Order to Respondent
Delia, Petitioner Filarsky spoke directly to then-City
of Rialto City Attorney Bob Owen on the telephone
regarding the proposed Order. App., infra, 64, 93.
Petitioner Filarsky advised Mr. Owen of the circum-
stances surrounding the investigation and the scope
of the proposed Order. Additionally, Respondent
Delia’s counsel Mr. Adams also spoke to Mr. Owen
prior to the Order being issued. App., infra, 64, 93.
The City Attorney offered no objection to the proposed
Order and could see no reason why the Order should
not issue. App., infra, 64, 93.

7

Thereafter, no less than four (4) union represen-
tatives were called and summoned by Delia’s counse]
to the ongoing interview of Delia so that they could
sit in and listen while Respondent Delia was directed
to drive to his home, remove a sample of the unused
Subject Building Materials from inside, and show
them to the Battalion Chiefs. App., infra, 64, 93. The
four union representatives listened to the Order and
offered no objection whatsoever. App., infra, 64, 93.

Petitioner Filarsky did not attend the visit to
Respondent Delia’s home. App., infra, 64, 93-94. The
only people who attended the visit to Respondent
Delia’s home were Respondent Delia, Respondent
Delia’s counsel, and Battalion Chiefs Pee! and Bekker
(Peel and Bekker remained in their car parked
curbside the entire time and departed after a sample
of the unused Subject Building Materials was
brought outside by Respondent Delia). App., infra, 8,
9, 63, 93-94.

2. Respondent Delia filed a Complaint against
Defendants City of Rialto Fire Department, Fire
Chief Stephen C. Wells, Battalion Chief Mike Peel,
Battalion Chief Frank Bekker, and Petitioner
Filarsky, on May 21, 2008, in the United States
District Court, Central District, based on the alleged
violation of Respondent Delia’s civil rights under the
Fourth and Fourteenth Amendments of the U.S.

8

Constitution under 42 U.S.C. section 1983.' See App.,
infra, 3, 57. On January 12, 2009, Petitioner Filarsky
moved for summary judgment, or in the alternative,
summary adjudication of issues. Petitioner Filarsky
asserted that: (1) he was entitled to the protection of
the doctrine of qualified immunity as a private de-
fendant who performed services at the behest of the
sovereign, i.e., City of Rialto, (2) his conduct did not
constitute a violation of Respondent Delia’s constitu-
tional rights for which a claim under 42 U.S.C. sec-
tion 1983 could be sustained, (3) he had no obligation
to countermand the City’s decision to Order Respon-
dent Delia to produce the Subject Building Materials,
and (4) even if his conduct was ultimately determined
to constitute a violation, it was not the violation of a
“clearly established” constitutional right, thereby
entitling him to the protection of the doctrine of
qualified immunity. App., infra, 53-55.

On February 2, 2009, the United States District
Court, Central District, heard Petitioner Filarsky’s
motion for summary judgment (along with the other
Defendants’ motions for summary judgment); on that
same day, the court granted Defendants’ motions for

' Respondent Delia made other claims including a separate
Monell claim against the City of Rialto, however, for brevity’s
sake, we do not discuss those claims within this petition.

* Also on January 12, 2009, Defendants City of Rialto,
Bekker, Peel, and Wells filed their motion for summary judg-
ment, or in the alternative summary adjudication, however,
again for the sake of brevity the basis for their assertions will
not be discussed in this Petition.

9

summary judgment based upon the extension of
qualified immunity which operated as a bar to suit.
In addition, the District Court also found that Re-
spondent Delia’s Subject Building Materials display
did not constitute a warrantless search and therefore
was not a violation of Respondent Delia’s constitu-
tional rights. Specifically, the District Court held
that:

¢ Petitioner Filarsky was “protected from lia-
bility by the doctrine of qualified immunity
as [his] conduct did not violate clearly estab-
lished statutory or constitutional rights of
which a reasonable person would have known
because Delia {had} not demonstratied] a vio-
lation of a clearly established constitutional
right in that Delia was not threatened with
insubordination or termination if he did not
comply with any order given and none of
these defendants entered [Delia’s} house.”
App., infra, 48.

- “Delia’s claim against the City based on 42
U.S.C. section 1983 fails as a matter of law
because neither Wells, Peel, Bekker nor
Filarsky had final policymaking authority,
none was the policymaker for the City for the
purposes of the act about which Delia com-
plainfed) and Delia [had] provided no evi-
dence of any longstanding practice or custom
of the City or that any official with final policy-
making authority ratified the conduct of
which Delia complain|led}.” App., infra, 49.

10

3. On April 3, 2009, Respondent Delia filed a
timely Notice of Appeal, appealing the District
Court’s decision in granting Defendants’ motions for
summary judgment. App., infra, 3-5. The Ninth
Circuit reversed as to Petitioner Filarsky only. App.,
infra, 4-5. The opinion was authored by District
Judge for the Northern District of lowa, sitting by
designation, Judge Mark W. Bennett; the opinion was
joined by Judges Alfred T. Goodwin and Johnnie B.
Rawlinson. App., infra, 2-3. The panel found that
there was a violation of Respondent Delia’s rights,
but also unequivocally found that it was not a viola-
tion of a “clearly established right.” App., infra, 4-5,
24. The panel therefore upheld the grant of summary
judgment for the City employees based upon an
extension of qualified immunity but reversed the
District Court’s decision as to Petitioner Filarsky by
refusing to extend qualified immunity to him for the
very same acts. App., infra, 4-5, 24-27.

In declining to extend the protection of qualified
immunity to Petitioner Filarsky in this case, the
Ninth Circuit panel relied solely on Gonzalez ov.
Spencer, 336 F.3d 832 (9th Cir. 2003). In Gonzalez, the
Ninth Circuit rejected the attorney’s claim of quali-
fied immunity without ever considering the Richard-
son factors or taking into account the long tradition of
extending the protection of qualified immunity to
lawyers under such circumstances. /d. at 835 (quot-
ing Richardson, 521 U.S. at 412).

Curiously, the Ninth Circuit panel opinion ex-
pressly acknowledged a conflict with the Sixth Circuit

11

in the matter of Cullinan v. Abramson, 128 F.3d 301
(6th Cir. 2005). App., infra, 25. However, the Ninth
Circuit still declined to consider Cullinan, contending
erroneously that they were inextricably bound by the
decision in Gonzalez.

4. Petitioner Filarsky petitioned for panel
rehearing en banc on the grounds that: (1) rehearing
was warranted given the fact that the Ninth Circuit’s
panel opinion directly conflicted with an existing
opinion of another circuit court (Sixth Circuit) and
substantially affected the nationwide application/
extension of the doctrine of qualified immunity to
“private” lawyers working at the behest of the sover-
eign, by serving as an adjunct to government in an
essential governmental activity, and acting under
close official supervision, and (2) rehearing was
necessary to secure and maintain the uniformity of
the district court’s decisions thereby creating an
overriding need for national uniformity. App., infra, 3.

The League of California Cities filed an amicus
curiae brief in support of Petitioner Filarsky’s peti-
tion for rehearing en banc. Rehearing was denied.
App., infra, 3.

4

REASONS TO GRANT THE PETITION

The Ninth Circuit panel opinion skirts the thrust
of the only Supreme Court opinion that addresses
this issue directly: Richardson v. McKnight, 521 U.S.
399 (1997). While Richardson had a narrow holding,

12

the standards it adopted — closely examining the
history of and policy rationales for qualified tmmu-
nity — remain uncontroverted and are clearly applic-
able to this matter. As such, the Ninth Circuit’s
opinion and its basis are in conflict with the rationale
in Richardson. Further, the Ninth Circuit’s opinion is
also in direct conflict with decisions from other Cir-
cuit courts. In fact, the Ninth Circuit panel expressly
acknowledged a conflict with the Sixth Circuit in the
matter of Cullinan v. Abramson, 128 F.3d 301 (6th
Cir. 1997). App., infra, 25. However, the Ninth Circuit
declined to consider Cullinan at all, solely because
they felt “bound” by their Gonzalez decision, notwith-
standing that the doctrine of qualified immunity was
not even at issue and was not briefed in Gonzalez.

In addition to Cullinan v. Abramson, the Ninth
Circuit panel opinion conflicts with numerous deci-
sions from other federal courts. See, e.g., Cottingham
v. Policy Studios Inc., 2008 U.S. Dist. LEXIS 23145-7
(U.S. Dist. Ct. for the Middle Dist. of Tennessee,
Nashville Dist. 2008) (the court granted absolute
prosecutorial immunity to a private attorney collect-
ing alimony for the state because she acted at the
“behest of the sovereign.” The Court considered the
history and policy arguments, creating a presumption
of immunity for government contract lawyers); Bar-
tell v. Lohiser, 215 F.3d 550, 556 (6th Cir. 2000) (in
which private social workers were granted qualified
immunity who provided a public service task under
close government supervision and holding the pur-
pose of the Supreme Court’s articulation of qualified

13

immunity standards is to allow public officials to
perform important government functions free from
debilitating effects of excessive litigation); Eagon ex
rel. Eagon v. City of Elk City, 72 F.3d 1480, 1489 (10th
Cir. 1996) (holding a private individual who performs
a government function pursuant to a state order or
request is entitled to qualified immunity if a state
official would have been entitled to such immunity);
Lee v. Wyatt, 2009 U.S. Dist. LEXIS 47357 (U.S. Dist.
Ct. for the Western Dist. of Oklahoma 2009) (relying
on Richardson’s recognition of common law immunity,
a district court granted a private prison physician
qualified immunity with a discussion of history and
policy).

Clearly, the Ninth Circuit’s opinion is in direct
conflict with this Court’s majority decision in Rich-
ardson v. McKnight, but it is also in direct conflict
with the Sixth Circuit and other federal courts. In
this petition, we therefore urge that certiorari should
be granted to: (1) finally clarify the qualified immuni-
ty standard by addressing and applying the Richard-
son factors, explaining how they relate, how they are
to be applied, and which are dispositive in order to
reform the standard into a clear and coherent test;
and (2) settle once and for all the split among the
Circuits on the applicability of qualified immunity to
“private” lawyers who are retained specifically to
work with government employees in conducting
essential governmental activities, and “acting under
close official supervision.”

14

Contradictory immunity standards impose heavy
costs upon municipalities and, therefore, upon the
public at large. The Ninth Circuit’s opinion creates an
inconsistent standard across the nation’s jurisdic-
tions. As such, lawyers must adapt to each jurisdic-
tion’s rules, requiring differences in benefits and
personnel practices, depending on the jurisdiction. In
essence, this Ninth Circuit opinion overtly dictates to
municipalities how they can and cannot go about
their legal business by creating a powerful economic
deterrent to seeking the assistance and advice of
outside counsel. Under the law thus created by the
Ninth Circuit, a W-2 paid City attorney and Peti-
tioner Filarsky could engage in precisely the same
conduct, and yet the City attorney would be quali-
fiedly immune from suit itself, while Petitioner
Filarsky would not, simply and solely because of his
“private” status. This not only makes no logical sense,
but is contrary to the rationale in this Court’s major-
ity decision in Richardson, as well as the rationale in
its dissenting opinion. Certiorari should therefore be
granted.

15

L THE NINTH CIRCUIT OPINION CONTRA-
VENES THIS COURT'S DECISION ON QUALI-
FIED IMMUNITY, UNDER THE RICHARDSON
FACTORS, AS TO GOVERNMENT-RETAINED
“PRIVATE” LAWYERS WHO ARE “ACTING
AT THE BEHEST OF THE SOVEREIGN” BY
SERVING AS AN “ADJUNCT TO GOVERN-
MENT IN AN ESSENTIAL GOVERNMENTAL
ACTIVITY” AND “ACTING UNDER CLOSE

OFFICIAL SUPERVISION.”

Until the Ninth Circuit’s panel opinion in this
case, no Circuit Court had ever categorically declined
to extend the protection of qualified immunity to
government-retained private lawyers while weighing
the Richardson factors and examining the tradition
of immunity. In fact, this Court carefully and specifi-
cally left open the opportunity of extending qualified
immunity to private individuals, including by exam-
ple lawyers, working “at the behest of a sovereign”
when “special circumstances” were present. In Rich-
ardson, 521 U.S. at 407, citing Tower v. Glover, 467
U.S. 914, 921 (1984), and J. Bishop, Commentaries on
Non-Contract Law §§ 704, 710 (1889) this Court
stated that the common law ‘did provide a kind of
immunity for certain private defendants, such as
doctors or lawyers who performed services at the
behest of the sovereign.’” While the extent or “kind”
of immunity was not discussed in Richardson, the
United States Court of Appeals in the Sixth Circuit
was confronted with the same legal question as to
whether the “outside counsel” status of private law-
yers and their firms made those defendants eligible

16

for qualified immunity. See Cullinan v. Abramson,
128 F.3d 301, 310 (6th Cir. 1997). Ultimately, the
Sixth Circuit determined that the rationales for
qualified immunity applied to these lawyers and their
firm in the same way they applied to the city’s some-
time law director, who was also a named defendant.
Id. As such, the Ninth Circuit’s opinion directly
conflicts with this Court’s holding in Richardson and
creates a split in the Circuits by categorically denying
the extension of qualified immunity to “private”
lawyers working with government employees in “an
essential government activity,” and “acting under
close official supervision.”

A. Under The Richardson Majority Opin-
ion, Petitioner Filarsky Is Entitled To
Qualified Immunity In Light Of This
Court’s Reference To Historical Im-
munity For Lawyers Working “At The
Behest Of The Sovereign.”

In Richardson v. McKnight, this Court reviewed
qualified immunity to the limited facts of its case
where private actors were serving a largely public
function — an inmate had sued a guard at a privately
managed correctional center under 42 U.S.C. section
1983 for placing restraints tightly enough to cause
physical injuries. Richardson, 521 U.S. at 401-402. The
private guards asserted a qualified immunity defense
from 42 U.S.C. section 1983 lawsuits. Jd. After the
District Court and the Sixth Circuit denied the

17

guards’ assertion of qualified immunity, this Court
granted certiorari.

In this Court’s 5-4 decision, the majority opinion
in Richardson examined the history and policy ra-
tionales of immunity and determined that under the
narrow facts and circumstances of that case involving
a private company managing a prison, the private
prison guards were not entitled to assert qualified
immunity from 42 U.S.C. section 1983 lawsuits.
Richardson, 521 U.S. at 401. In reaching this conclu-
sion, the Richardson majority analyzed this Court’s
decision in Wyatt v. Cole, 504 U.S. 158 (1992), which
held that a private individual accused of conspiring
with government employees was not entitled to assert
qualified immunity on the “narrow” circumstance
where the private individual was “invoking state
replevin, garnishment, or attachment statute.” Wyatt,
504 U.S. at 168-169; Richardson, 521 U.S. at 404. The
Richardson majority concluded that there were two
(2) factors which must be analyzed in order to deter-
mine whether qualified immunity applied to the
private prison guards in the 42 U.S.C. section 1983
action: (1) any history providing immunity to prison
guards, and (2) the policy concerns or purposes under-
lying immunity which would warrant applying it to
the prison guards in the 42 U.S.C. section 1983 action
before it.

The Richardson majority found no “firmly rooted”
tradition of immunity for private prison guards; on
the contrary, previous cases held private prison
guards liable for mistreating inmates. Richardson,

18

521 U.S. at 404. The majority determined that pri-
vate contractors were heavily involved in prison
management activities as far back as the 19th cen-
tury and there was no conclusive evidence of a histor-
ical tradition of immunity for private parties carrying
out these functions. Richardson, 521 U.S. at 405-407.
History, therefore, did not provide any significant
support for the immunity claim of the private prison
guards. Richardson, 521 U.S. at 407. Specifically to
highlight the direct contrast, the opinion noted that
doctors and lawyers acting “at the behest of the
sovereign” historically had immunity; thus, even
though not applicable to facts in that case, this Court
took great care to illustrate the circumstances in
which qualified immunity would be extended, in
particular to lawyers and doctors. Richardson, 521
U.S. at 407 (majority opinion) (citing Tower v. Glover,
467 U.S. 914, 921 (1984)).

The majority in Richardson determined that it
was a closer question as to whether the purposes
underlying qualified immunity warranted its applica-
tion to private prison guards. Richardson, 521 U.S.
at 407-408. This Court recognized that one of the
primary purposes of the immunity doctrine is to
protect public officials, as well as society, from un-
warranted timidity by public officials who may be
deterred from exercising their authority by the threat
of lawsuits exposing them to personal liability for
inadvertent violations. Richardson, 521 U.S. at 407-
408. The Richardson majority opinion rejected the
prison guard’s argument that since they performed

19

the same work as state prison guards, qualified
immunity must be applied to a similar degree. The
Richardson majority held that the mere performance
of a government function should not make the differ-
ence between unlimited 42 U.S.C. section 1983 liabil-
ity and qualified immunity especially for a private
person who performs a job without government
supervision or direction. Richardson, 521 U.S. at 409.
(Italics added). The Richardson majority also noted
that marketplace pressures were different for a
private company versus a government employer
and thus there was less concern with unwarranted
timidity. Richardson, 521 U.S. at 409-410. The Rich-
ardson majority further indicated that private em-
ployees may be not be deterred by the threat of
damages due in part to the availability of compre-
hensive insurance requirements for private com-
panies as well as the ability to offer higher pay or
extra benefits unavailable to civil service employees.
Richardson, 521 U.S. at 412-413. Finally, the Rich-
ardson majority noted that the risk of distraction
from lawsuits alone was not a sufficient ground for
immunity. Richardson, 521 U.S. at 412.

The Richardson majority therefore concluded
that private prison guards, unlike those who work
directly for the government, do not enjoy immunity
from suit in a 42 U.S.C. section 1983 case. Richard-
son, 521 U.S. at 412. Accordingly, while this Court
concluded that none of the factors evident in that
limited situation warranted the extension of quali-
fied immunity to private prison guards under those

20

specific facts, it clearly indicated that there was an
established history of the extension of such immunity
to lawyers acting in the same capacity as Petitioner
Filarsky. Jd. at 412. Finally, we think that it is not a
coincidence that this Court in Richardson employed
the example of lawyers having a lengthy history of
immunity in illustrating how and under what cir-
cumstances qualified immunity should properly be
extended.

B. The Richardson Majority Expressly
Did Not Preclude Qualified Immunity
For An Individual Working With The
Government In An Essential Govern-
ment Activity, And Under Close Super-
vision, Such As Petitioner Filarsky.

The Ninth Circuit’s blanket prohibition against
any private actor asserting qualified immunity in its
jurisdiction simply because they are a “private” actor
contravenes this Court’s majority opinion in Richard-
son wherein it was specifically indicated that quali-
fied immunity may be appropriately asserted by
private individuals. Richardson, 521 U.S. at 413.
App., infra, 26-27. As such, the Ninth Circuit com-
pletely ignored this Court’s majority decision in their
opinion by creating this blanket prohibition without
ever considering the Richardson factors. Accordingly,
Petitioner Filarsky’s case involves facts that place
it squarely under the parameters of this Court’s
majority opinion in Richardson, which left open the
application of qualified immunity to be extended to

21

private individuals, such as lawyers. It is therefore
imperative that this Court now clarify the application
and scope of the doctrine of qualified immunity to
government-retained “private” lawyers working at
the “behest of the sovereign” by working with gov-
ernment employees in “essential government activi-
ties” and “under close official supervision.”

The majority opinion in Richardson, while hold-
ing that qualified immunity did not apply to the
private prison guards under the particular circum-
stances of that case, expressly limited its holding as
follows:

[WJle have answered the immunity question
narrowly, in the context in which it arose.
That context is one in which a private firm,
systematically organized to assume a major
lengthy administrative task (managing an
institution) with limited direct supervision
by the government, undertakes that task for
profit and potentially in competition with
other firms. The case does not involve a pri-
vate individual briefly associated with a gov-
ernmental body, serving as an adjunct to
government in an essential government ac-
tivity, or acting under close supervision.
Richardson, 521 U.S. at 413.

By carefully carving out these exceptions, the
majority in Richardson specifically allowed for the
doctrine of qualified immunity to be extended to pri-
vate individuals so long as the purposes of immunity
were being properly served. Richardson, 521 U.S. at

22

413. As such, “a private individual ... ” “associated
with a government body, serving as an adjunct to
government in an essential governmental activity, or
acting under close supervision” should be entitled to
assert qualified immunity. Richardson, 521 U.S. at
431.

The Ninth Circuit did not address this caveat;
yet, the record in this case unequivocally establishes
Petitioner Filarsky’s continued involvement in the
City’s internal investigations under close supervision,
which is a perfect fit under the criteria set forth in
Richardson. Petitioner Filarsky has provided legal
advice to the City on a multitude of labor and em-
ployment law matters over the past fourteen years,
including internal affairs investigations. App., infra,
6-7, 59, 88-89. Moreover, Petitioner Filarsky per-
formed such legal services for a variety of other
municipalities and entities in the public sector. App.,
infra, 6-7, 59, 88-89. Further, it was and is un-
disputed that there was “state action” on the pari of
Petitioner Filarsky in that he was acting at the
behest of the City at the time the alleged constitu-
tional violation occurred. App., infra, 6-7, 54, 58-59,
88-89. Therefore, Petitioner Filarsky was unequivo-
cally acting under ‘color of state law’ and within the
course and scope of his employment with the City as
a “private” attorney when he conducted the interview
of Respondent Delia. As such, Petitioner Filarsky
falls directly within the Richardson caveat of being a
“private individual” “associated with a government
body.”

23

In addition, the record in this case clearly estab-
lishes Petitioner Filarsky was “serving as an adjunct
to government in an essential governmental activity.”
Richardson, 521 U.S. at 413. Petitioner Filarsky
served as a lawyer who specialized in labor and
employment law, including personnel and internal
affairs matters for the City of Rialto and, at its be-
hest, conducted the interview of Respondent Delia
in conjunction with the City’s investigation of Re-
spondent Delia’s suspected inappropriate use of “sick
time.” App., infra, 6-7, 59, 88-89. The oral examina-
tion of City employees and rendering of legal advice
in connection with employment and personnel issues
is undoubtedly an essential governmental activity.

Further, the record in this case indicates that
Petitioner Filarsky’s participation in Respondent
Delia’s interview with two Battalion Chiefs in the
room and the Fire Chief nearby more than satisfied
the “acting under close official supervision” criteria in
the Richardson caveat. App., infra, 6-7. Petitioner
Filarsky’s advice to the City was completely consistent
with the Ninth Circuit’s finding that this was not the
violation of a “clearly established right.” App., infra,
4-5, 20-24.

The District Court determined and the Ninth Cir-
cuit agreed Petitioner Filarsky’s conduct was limited
to directing the internal investigation and concurring
with the Order. App., infra, 7-8. Petitioner Filarsky
had neither the authority nor obligation to counter-
mand the City’s decision to order Respondent Delia
to produce the Subject Building Materials. App.,

24

infra, 8, 62-63, 92. Moreover, Petitioner Filarsky did
not have control over the Battalion Chiefs to make
unilateral decisions regarding the outcome of this
internal investigation. App., infra, 8, 62-63, 92. As
such, Petitioner Filarsky’s conduct clearly meets the
“under close official supervision” factor of Richardson.

The Ninth Circuit wholly failed to address the
Richardson Court’s caveat by which this Court in-
dicated qualified immunity may appropriately be
asserted by a private individual. In fact, the Ninth
Circuit completely ignored the majority decision in
Richardson other than to quote the fact that the
Sixth Circuit’s decision in Cullinan v. Abramson, 128
F.3d 301 (1997) “relied exclusively on dictum in
Richardson v. McKnight, 521 U.S. 399, 407, that ‘the
common law di! provide a kind of immunity for
certain private defendants, such as doctors or lawyers
who performed services at the behest of the sover-
eign.’” App., infra, 25. The Ninth Circuit’s opinion
offers no further analysis of Richardson or its express
limitations and guidelines.

Subsequently, the Ninth Circuit then completely
contradicted itself by concluding that “they are not
free to follow the Cullinan decision because they are
“bound by prior panel opinions ‘unless an en banc
decision, Supreme Court decision or subsequent
legislation undermines those decisions.’” App., infra,
25. (Italics added). The contradiction is ironic inas-
much as Richardson is a Supreme Court decision,
which Cullinan directly cites and relies on, and which
should in fact require the Ninth Circuit to follow.

25

Instead, the Ninth Circuit elected to claim that their
hands were tied and they had no choice but to follow
Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003),
where the Ninth Circuit stated in two sentences, “[the
attorney] is not entitled to qualified immunity... .”
Id. at 835 (quoting Richardson, 521 U.S. at 412). It is
abundantly clear that the Ninth Circuit never exam-
ined the Richardson factors, nor did it take into
account the long tradition of extending immunity
under these circumstances because the panel erro-
neously opined that it had no choice but to follow
Gonzalez. The gravamen of this choice was that the
Ninth Circuit held Petitioner Filarsky, the messenger
conveying the Order, responsible for violating Re-
spondent Delia’s rights, while declining to extend to
him the protection of qualified immunity but afford-
ing immunity to those who actually had the power to
issue the Order.

Qualified immunity should therefore be extended
to Petitioner Filarsky, and this Court should clarify
that a “private” lawyer working at the “behest of the
sovereign” by serving as an adjunct to government in
an essential government activity and under “close
official supervision” is entitled to an extension of
qualified immunity under the Richardson majority
opinion.

26

C. Even Under The Richardson Dissent’s
Functional Approach, Petitioner Filarsky
Is Entitled To Qualified Immunity.

Four Justices dissented from the majority opin-
ion in Richardson. The dissent authored by Justice
Scalia and joined by Chief Justice Rehnquist, Justice
Kennedy, and Justice Thomas, argued that a func-
tional approach should be applied to determine
whether qualified immunity should be extended to
private individuals. Richardson, 521 U.S. at 414-416.
The dissent contended that the historical under-
pinnings and underlying immunity established that
private parties who were performing governmental
functions which give rise to qualified immunity
should also be entitled to assert qualified immunity.
Richardson, 521 U.S. at 414-416.

The dissent questioned the holding that qualified
immunity should be “unavailable to employees of
private prison management firms, who perform the
same duties as state employed correctional officials,
who exercise the most palpable form of state power,
and who may be sued for acting ‘under color of state
law.’” Richardson, 521 U.S. at 414. Instead, the
dissent relied upon prior Supreme Court precedent
which held that immunity analysis rests on function-
al categories, not on the status of the defendant.
Richardson, 521 U.S. at 416-417. The dissent recog-
nized that private individuals have regularly been
accorded immunity when they perform a governmen-
tal function that qualifies. Richardson, 521 U.S. at
417-418.

27

It was suggested in the dissent that the history of
the functional approach should govern whether qual-
ified immunity is extended to a private individual
and that it should be not be dependent upon policy
reasons. Richardson, 521 U.S. at 418. Nonetheless,
the dissent analyzed the majority’s policy reasons and
concluded that the market pressures and insurance
analysis employed by the majority was correct. Rich-
ardson, 521 U.S. at 419-420:

[Slince there is no apparent reason, neither
in history nor in policy, for making immunity
hinge upon the court’s distinction between
public and private guards, the precise nature
of that discretion must also remain ob-

scure....

Today’s decision says that two sets of prison
guards who are indistinguishable in the ul-
timate source of their authority over prison-
ers, indistinguishable in the powers that they
possess over prisoners, and indistinguishable
in the duties that they owed toward prison-
ers, are to be treated quite differently in the
matter of their financial liability. . .. Neither
our precedent, nor the historical foundations
of section 1983, not the policies underlying
section 1983, support this result. Richard-
son, 521 U.S. at 422-423.

It is clear from the record before this Court that
Petitioner Filarsky finds himself in the exact situ-
ation that the dissent in the Richardson court alluded
to: a private attorney, retained by the City to con-
duct internal affairs investigations (an essential

28

government activity) acting as the City’s attorney in
matters relating to labor and employment. There is
no distinction between the role and function of Peti-
tioner Filarsky in serving the City’s legal needs and
that of its own in-house counsel/City Attorney. Iron-
ically, the Ninth Circuit found that, for the same acts,
those who had the power to issue the Order (City)
were qualifiedly immune but Petitioner Filarsky was
not. What Petitioner Filarsky was entitled to, accord-
ing to the Ninth Circuit, was to become open to
personal financial liability, while City employees
engaging in the exact same conduct were qualifiedly
immune and completely exonerated for their actions
because suit is barred. App., infra, 4-5, 12-24.

A more far-reaching impact of the Ninth Circuit’s
opinion, and one which this Court touched on in the
Richardson dissent is the question of the extent to
which courts will refuse to extend qualified immunity
to private actors under any circumstance, but espe-
cially where “private” lawyers are retained by munic-
ipalities to perform specialized legal services under
circumstances where a state employee engaging in
the identical conduct would clearly be entitled to
immunity. In view of the Ninth Circuit’s opinion, no
sensible “private” attorney offering services to munic-
ipalities would continue to do so without an agree-
ment by the municipality to indemnify them and hold
them harmless. Hundreds of such lawyers statewide,
and possibly thousands nationwide, perform private
legal services in the public sector on a regular basis;
all of them are now directly and adversely impacted

29

by this Ninth Circuit opinion. This Ninth Circuit
opinion will cause municipalities to be unable to
afford to seek specialized legal guidance (such as
employment law advice) without exposing themselves
potentially to further financial expense by having to
indemnify the attorneys they have retained, while
their regular employees are otherwise immune.

In other words, the cities and their employees
might be qualifiedly immune for the same conduct,
but they may be obligated to later provide indemnity
to private actors in the public sector or be deprived of
the opportunity to obtain such services. As a practical
matter, this opinion takes away the protection of
qualified immunity from any “private” attorney work-
ing for a municipality throughout the Ninth Circuit.
This policy rationale has been previously noted, with
concern, by this very Court in examining immunity’s
purposes where performing a governmental function
confers immunity. See Richardson, 521 U.S. at 417-
418. It would be unfortunate to allow the Ninth
Circuit’s categorical denial, without explanation, of
the application of qualified immunity to so-called
“private” attorneys, to stand as precedent without a
studied review of its potential effect on municipalities
all over the country.

Finally, it should be noted that the extension of
qualified immunity to private actors in the public
sector does not constitute a “get out of trouble free
card”; qualified immunity applies only where the
infringement is inadvertent, accidental and not of a
“clearly established right” and is therefore not a

30

license to violate constitutional nghts, regardless of
whether the actor is public or private.

Il. THE NINTH CIRCUIT OPINION CRE-
ATES A CIRCUIT SPLIT ON THE DOC-
TRINE OF QUALIFIED IMMUNITY BY
CATEGORICALLY DENYING QUALIFIED
IMMUNITY TO ALL GOVERNMENT-
RETAINED “PRIVATE” LAWYERS.

Since Richardson was decided by this Court,
the lower courts have varied widely in applying its
factors; however, no Circuit Court had ever categori-
cally denied the extension of qualified immunity to
government-retained “private” lawyers when weigh-
ing the Richardson factors and examining the tradi-
tion of immunity until this Ninth Circuit opinion.

The Sixth Circuit in Cullinan v. Abramson, 128
F.3d 301, 310 (6th Cir. 1997), granted a city’s outside
counsel qualified immunity based on the phrase “be-
hest of the sovereign.” In Cullinan, 128 F.3d at 310,
Plaintiffs were independent investment managers
who handled a portion of the assets of a Louisville,
Kentucky police fund that brought a federal civil
rights/RICO lawsuit, now codified under 42 U.S.C.
section 1983, against the city, its outside lawyers, the
mayor, and other city officials, all of whom were said
to have been involved in the efforts to have the plain-
tiffs fired as investment managers for the pension
fund. All defendants moved for dismissal of the
complaint under Federal Rules of Civil Procedure,
Rule 12, asserting among other defenses, absolute

31

and qualified immunity from suit on both the federal
claims and numerous pendent state law claims by
which the federal claims were accompanied. Cullinan,
128 F.3d at 310.

The District Court largely denied the motions to
dismiss; however, the appellate court concluded that
as attorneys for the city, the city’s outside counsel,
were clearly acting as the city’s agents. Cullinan, 128
F.3d at 310. (Emphasis added). Citing Richardson,
the Cullinan court determined that the rationales for
the application of qualified immunity to the lawyers
and their firm applied to the city’s sometime law
director (also a named defendant) in the same fash-
ion. Cullinan, 128 F.3d at 310.

As was the case in Cullinan, Petitioner Filarsky
was retained to act as the City’s agent in its investiga-
tion of Respondent Delia. Petitioner Filarsky would
n have been involved in Respondent Delia’s investi-
gation on an individual! basis, had it not been at the
specific request of the City. Accordingly, Petitioner
Filarsky was entitled to the protection of qualified
immunity to the same extent any city official would
be. See Cullinan v. Abramson, 128 F.3d 301, 310 (6th
Cir. 1997) holding that “the rationales for qualified
immunity apply to [private] lawyers and their firms
in about the same way they apply to [the government
attorney |.”

The Cullinan decision is therefore correct under
Richardson 521 U.S. at 412-413, holding it had
answered the question of not extending qualified

32

immunity narrowly to the facts of its case: “[sjecond,
we have answered the immunity question narrowly,
in the context in which it arose. That context is one in
which a private firm, systematically organized to
assume a major lengthy administrative task (manag-
ing an institution) with limited direct supervision by
the government, undertakes that task for profit and
potentially in competition with other firms. The case
does not involve a private individual briefly associ-
ated with a government body, serving as an adjunct to
government in an essential governmental activity, or
acting under close official supervision.” Richardson
therefore emphasized how narrow a question this
Court was answering in dealing only with private
defendants invoking a state replevin, garnishment, or
attachment statute and wisely leaving open the door
for the opportunity to extend qualified immunity to
private individuals working “at the behest of a sover-
eign” when “special circumstances” were present.
Richardson, 521 U.S. at 407.

The Ninth Circuit’s opinion serves as a blanket
denial of qualified immunity to private individuals
merely on their status as a private party as opposed
to whether their function serves the purposes of the
doctrine of qualified immunity. Richardson, 521 U.S.
at 431. As such, this Ninth Circuit opinion serves as
an automatic disqualification of a private party’s
right to assert the defense of qualified immunity in 42
U.S.C. section 1983 lawsuits in this jurisdiction,
which is at odds with the application of qualified

33

immunity to private parties in 42 U.S.C. section 1983
in the Sixth Circuit.

Moreover, the Ninth Circuit’s reliance on Gonzalez
v. Spencer, 336 F.3d 832 (9th Cir. 2003) is wholly
misplaced given that it provides absolutely no reason-
ing for its decision. In Gonzalez, the plaintiff brought
suit against the attorney, her law firm, and the
county “for accessing and using his juvenile court file
without authorization” and alleged this conduct con-
stituted a violation of his Fourth Amendment rights.
Id. In rejecting the attorney’s claim of qualified
immunity, the Ninth Circuit stated in two sentences,
“[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 signifi-
cantly favoring an extension of governmental immu-
nity’ to private parties in her position.” Jd. at 835
(quoting Richardson, 521 U.S. at 412). The clear
implication in this terse two sentence edict is that the
issue of qualified immunity would have been decided
differently if the attorney had pointed to such special
reasons; however, appellant’s counsel in Gonzalez
neglected to cite to this Court’s acknowledgment in
Richardson of the long history of immunity provided
to attorneys in her position. Consequently, the Ninth
Circuit panel simply never considered the Richardson
factors or “special reasons,” and did not take into
account the long tradition of extending the protection
of qualified immunity to lawyers under such circum-
stances. In fact, the Ninth Circuit panel in Gonzalez
had no reason to even address the issue of qualified

34

immunity at all, inasmuch as the court expressly
found appellant’s conduct to constitute a violation of a
“clearly established” right, thereby rendering the
doctrine of qualified immunity inapplicable on its
face.

Nevertheless, relying only upon Gonzalez v.
Spencer, 336 F.3d 832 (9th Cir. 2003) the Ninth Cir-
cuit panel concluded that because Petitioner Filarsky
did not allege “any intervening legislation, en banc
decision or Supreme Court decision that would allow
the court to overrule the decision in Gonzalez and
therefore Filarsky is not entitled to qualified immu-
nity.” App., infra, 25-26.

Other lower courts have varied widely in apply-
ing Richardson as stated in the Harvard Law Review
article published in the scholarly treatise, Develop-
ments in the Law: State Action and the Public Private
Distinction: Private Party Immunity from Section
1983 Suits, 123 Harvard Law Review 1266 (March
2010). This treatise notes:

Seven Circuits have used Richardson as
a test, refusing to grant private actors qual-
ified immunity in any circumstances. While
only one Circuit has explicitly granted
private actors qualified immunity under
Richardson, others have arguably done so
implicitly, so immunity is not always categor-
ically precluded. One Circuit has held that
qualified immunity applied in every case it
has considered, even though it has not relied
on Wyatt or Richardson. The remaining four

35

Circuits have no holding applying Richard-
son. Much litigation continues at the district
court level without circuit-wide resolution.
123 Harvard Law Review at p. 1271.

The Sixth Circuit holding in Cullinan v. Abramson,
128 F.3d 301 (6th Cir. 1997) and the recent treatise
cited above state persuasive reasons why this Court
should grant this petition for writ of certiorari in
order to re-examine and clarify the Richardson fac-
tors and finally explain how they relate, how they are
to be applied, and which are dispositive for extending
the protection of qualified immunity to government
retained “private” lawyers as expressly left open in
Richardson.

~

CONCLUSION

~ The issue before this Court is the applicability of
the doctrine of qualified immunity to “private” gov-
ernment retained lawyers such as Petitioner Filarsky.
Petitioner Filarsky has been found to be a state actor
for purposes of 42 U.S.C. section 1983 liability, and at
the same time is now being denied the right to assert
qualified immunity even though City employees
engaging in precisely the same conduct were entitled
to do so. App., infra, 6-7, 54, 58-59, 88-89. As such, a
grave injustice has been created by this Ninth Circuit
opinion, which, if permitted to stand, will adversely
affect the practice of law by private lawyers in the
public sector across the nation.

36

Accordingly, for the foregoing reasons, Petitioner
Filarsky urges that this petition for a writ of certi-

orari be granted.

Respectfully submitted,

JON H. TISDALE

Counsel of Record

JENNIFER CALDERON

GILBERT, KELLY, CROWLEY
& JENNETT LLP

1055 West Seventh Street

Suite 2000

Los Angeles, California 90017

(213) 615-7000

jht@gilbertkelly.com

jcalderon@gilbertkelly.com

Counsel for Petitioner

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NICHOLAS B. DELIA,
Plaintiff-Appellant,

Vv.

CiTY OF RIALTO, a Public
Entity; City OF RIALTO FIRE
DEPARTMENT, a Public Agency;
STEPHEN C. WELLS, Individually
and as the Fire Chief for the
City of Rialto; MIKE PEEL,
Individually and as Battalion
Chief for the City of Rialto;
FRANK BEKKER, 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.

No. 09-55514

D.C. No.
2:08-cv-03359-R-PLA

ORDER AMENDING
OPINION AND
DENYING PETITION
FOR REHEARING
EN BANC AND
AMENDED OPINION

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
Amended November 8, 2010

App. 2

Before: Alfred T. Goodwin, Johnnie B. Rawlinson,
Circuit Judges, and
Mark W. Bennett, District Judge.*

Opinion by Judge Bennett

COUNSEL

Michael A. McGill and Carolina V. Diaz of Lackie,
Dammeier & McGill, Upland, California, for appel-
lant 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 Depart-
ment, Stephen C. Wells, Mike Peel and Frank
Bekker.

Jon H. Tisdale and Jennifer Calderon of Gilbert,
Kelly, Crowley & Jennett, Los Angeles, California, for
appellee Steve A. Filarsky.

ORDER

The opinion filed September 9, 2010, is amended
as follows:

Slip Opinion page 13785, first full paragraph,
lines 7-8 replace “knew they could not directly do
without clearly violating the Fourth Amendment”
with “declined to do directly.”

* The Honorable Mark W. Bennett, United States District
Judge for the Northern District of lowa, sitting by designation.

App. 3

With that amendment, Judge Rawlinson voted,
and Judges Goodwin and Bennett recommended, to
deny the Petition for Rehearing En Banc.

The full court has been advised of the Petition for
Rehearing En Banc, and no judge of the court has
requested a vote.

Appellee Steve A. Filarsky’s Petition for Rehear-
ing En Banc filed on October 8, 2010, is DENIED.

Future petitions for rehearing and rehearing en
banc will not be entertained.

OPINION
BENNETT, District Judge:

Appellant Nicholas B. Delia (“Delia”), a fire-
fighter, 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 Depart-
ment Battalion Chiefs, Mike Peel and Frank Bekker,
and a private attorney, Steve Filarsky. Delia alleges
violations of his constitutional rights arising during 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 several rolls of recently purchased insulation,
and bring them out of the house and place them in

App. 4

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 counsel refused to consent to a
warrantless search of his home by Battalion Chief
Peel.’

The district court granted summary judgment in
favor of all defendants. In a written order, the district
court held that all of the individual defendants were
entitled to qualified immunity. 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 jurisdic-
tion 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

' 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 inva-
sions of privacy under the First, Fifth and Fourteenth Amend-
ments. In this appeal, however, he claims only violations of his
Fourth and Fourteenth Amendment rights.

App. 5

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 quali-
fied 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
Department 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 fire-
fighter 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 hospi-
tal. The doctor again issued him an off-duty work
order. This time it was for eight shifts. The doctor
also scheduled a medical test for him. Again, the
doctor did not place any activity restrictions on Delia.
On August 22, 2006, Delia returned to the hospital

App. 6

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 esophagitis, 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 previously 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 de-
spite 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 administrative investigation interview. The in-
terview was conducted by Filarsky, a private attor-
ney retained by the City. Filarsky had previously

App. 7

represented the City in conducting interviews during
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, Stuart Adams, Peel and
Bekker were also present at the interview. At the
onset of the interview, Filarsky warned Delia that he
was obligated to fully cooperate. Delia was further
cautioned that “[ilf at any time it is deemed you are
not cooperating then you can be held to be insubordi-
nate 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 undertaking in his home. Delia answered
that he had some duct work done in his home and
had purchased some rolls of insulation. He told
Filarsky that the rolls were currently sitting in his
house. Filarsky showed Delia a videotape of him
purchasing home construction materials, including
the rolls of insulation, 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

App. 8

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 insula-
tion.

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 warrant-
less 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
volunteer 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 rolis of insulation from
his house. 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 Bekker never

App. 9

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. Defendants sub-
sequently moved for summary judgment. At the
hearing on defendants’ motions for summary judg-
ment, the district court orally granted defendants’
motions. The court found that Delia had not estab-
lished 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 defen-
dants, Chief Wells, Peel, and Bekker were entitled
to qualified immunity. However, with respect to
Filarsky, the court stated:

As to Defendant Filarsky, the evidence estab-
lishes that Filarsky’s conduct did not result
in the deprivation of any constitutional mght
required — as a required element for a 1983
claim. Filarsky’s conduct consisted of con-
ducting 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 threatened with
subordination [sic} or termination if he re-
fused to comply with the order.

Anp. 10

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 findings of fact and conclusions of law. It
appears from the record that the district court me-
chanically adopted the findings of fact and conclu-
sions of law as prepared by defense counsel.’ In its

* 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
F2d 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 entertained by the impartial
judge at the time of his initial decision.” Interchemical 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 conclusions. The vice is when the district
judge fails to study them and make such changes as are neces-
sary to be sure they reflect his opinion.”).

App. 11

written order, the district court concluded that
Filarsky, as well as Peel, Bekker and Chief Wells, was
entitled to qualified immunity. No explanation for
this change in the district court’s reasoning appears
in its written order.’ The district court also held that
the City was entitled to summary judgment on Delia’s
Monell claim. The district court, again, found that
Delia had not established that he was injured by an

* 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 order. Yet, no explanation for this
change appears in the record. Because the district court’s
written order postdates its oral statement, we will proceed on
the presumption that the district court abandoned its prior oral
reasoning 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 Ma-
chines, Inc. v. Hedco, Inc., 838 F.2d 718, 727 (3d Cir. 1988)
(noting that “a formal order controls over a prior oral state-
ment.”); #.£.0.C. v. Exxon Shipping Co., 745 F.2d 967, 974 (Sth
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... ”)

App. 12

express policy, a longstanding custom, or an official
with final policymaking authority..

lI. 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).

UI. DISCUSSION
A. Qualified Immunity — The City’s Employees

“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly
established statutory or constitutional 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 quali-
fied immunity: “Qualified immunity balances two
important interests — the need to hold public officials
accountable when they exercise power irresponsibly
and the need to shield officials from harassment,

App. 13

distraction, and liability when they perform their
duties reasonably.” Jd. In fact, “(tlhe protection of
qualified immunity applies regardless of whether the
government official’s error is ‘a mistake of law, a
mistake of fact, or a mistake based on mixed ques-
tions 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 estab-
lished’ at the time of defendant’s alleged misconduct.”
Pearson, 129 S. Ct. at 815-16. In Pearson, the Court
overruled its prior holding, in Saucier v. Kaiz, 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. Rowlands, 606 F.3d 646, 651
(9th Cir. 2010) (recognizing 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 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

App. 14

Francisco, 595 F.3d 964, 971 (9th Cir. 2010) (en banc).
Thus, the threshold 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 insula-
tion and show them to fire department personnel. We
agree. The Fourth Amendment, made applicable to
the states through the Fourteenth Amendment, Mapp
v. Ohio, 367 U.S. 643, 655 (1961), guarantees, “[tjhe
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, sup-
ported 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 “[slearches and seizures by government
employers or supervisors of the private property of
their employees.” O’Connor v. Ortega, 480 U.S. 709,
715 (1987).

In Payton v. New York, 445 U.S. 573 (1980), the
Supreme Court explained that no zone of privacy is

App. 15

more clearly defined thar one’s home: “[T]he Fourth
Amendment has drawn a firm line at the entrance to
the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a
warrant.” Jd. at 590; see Kyllo v. United States, 533
U.S. 27, 28 (2001) (observing that “search of a 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}Jne 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) (“{Tlhe
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 Hampshire, 403 U.S. 448,
474-75 (1971). The circumstances which excuse the
failure to obtain a warrant are “‘few in number and

App. 16

carefully delineated,” where one’s home is con-
cerned. See Welsh v. Wisconsin, 466 U.S. 740, 749

* We note that the Supreme Court recently reemphasized
that the “‘special needs’ of the workplace” constitute an excep-
tion 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
analytical 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 analysis has two steps:

First, because “some government offices may be so
open to fellow employees or the public that no expec-
tation of privacy is reasonable,” id., at 718, a court
must consider “[t]he operational realities of the work-
place” in order to determine whether an employee's
Fourth Amendment rights are implicated, id., at 717
... Next, where an employee has a legitimate privacy
expectation, an employer’s intrusion on that expecta-
tion “for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct,
should be judged by the standard of reasonableness
under all the circumstances.”

Jd. (quoting O’Connor, 480 U.S. at 717, 718, and 725-726). The
competing 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.’” Jd. (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 reason-
able and normal in the private-employer context.” O’Connor,
480 U.S. at 732. If so, the search does not violate the Fourth
Amendment. /d. The Court did not resolve this schism in Quon.
Quon, 130 S.Ct. at 2628. The Quon-O’Connor workplace
(Continued on following page)

App. 17

(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 asking 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 warrantless
searches. Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973); United States v. Rubio, 727 F.2d 786, 796

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 alphanumeric pager); O'Connor, 480 U.S. at
712-13 (concerning search of physician’s state office and seizure
of personal items from his desk and filing cabinet). Moreover,
even if the Quon-O’Connor workplace warrant exception 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 irrele-
vant 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.

App. 18

(9th Cir. 1983). Filarsky asked Delia to consent to
allowing Peel to search for the insulation. Delia,
however, refused to consent. 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 insula-
tion 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 ex-
poses to public view is not protected by the Fourth
Amendment”). Delia, however, again _ rejected
Filarsky’s request.

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 declined to do directly. 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

App. 19

investigation could result in charges of insubordina-
tion 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 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. Jd. at 1571.
“When the police knocked on the door [of the defend-
ants’ room] and demanded that it be opened,” one of
the defendants obeyed, at which point, the police
officers recognized the suspect as the robber and
found evidence of the robbery in plain view. /d. This
court found that the defendant had opened the door
in response to a claim of lawful authority, not volun-
tarily. /d. 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.” /d. 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 involun-
tary and coerced by the direct threat of sanctions
including loss of his firefighter position.” Therefore,

* It is well established that public employers generally
cannot condition employment on an employee’s waiver of
(Continued on following page)

App. 20

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 immunity 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 hght of the legal rules that were clearly estab-
lished 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. Camreta,

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).

App. 21

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 “contours 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.

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 be-
yond 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. Commis-
sioner 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.

Both Supreme Court decisions concern municipal
employees who were questioned about corruption in
their agencies. In Gardner, the plaintiff, a police

App. 22

officer, was subpoenaed to appear before a New York
County grand jury that was investigating bribery and
corruption of police officers in connection with gam-
bling 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 274-753. The Court held that the plaintiff was
discharged “not for failure to answer relevant ques-
tions 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 consti-
tutional privilege.” Jd. at 2789.

The Court reached an identical conclusion in
Uniformed Sanitation Men, decided the same day as
Gardner. In Uniformed Sanitation Men, fifteen sani-
tation workers were summoned to appear at a hear-
ing conducted by a commissioner of investigations.
The commissioner was investigating charges that
sanitation department employees were not charging
certain fees and were keeping other fees for them-
selves. 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.” Uni-
formed Sanitation Men Ass’n, Inc. 392 U.S. at 282.
Twelve workers refused to answer, invoking their
privilege against self-incrimination, and were dis-
charged. Jd. The remaining three workers answered

App. 23

questions at the hearing. They were subsequently
suspended as a result of “information received from
the Commissioner of Investigation concerning irregu-
larities arising out of (their) employment in the
Department of Sanitation.” Jd. The three workers
were later summoned before a grand jury and asked
to sign waivers of immunity. Jd. They refused and
were fired solely for refusing to sign waivers of im-
munity. Jd. at 282-83. The Supreme Court held all the
discharges unconstitutional, noting that, “[the sanita-
tion 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.” /d. at 283. Thus, in both Gardner and
Uniformed Sanitation Men, the Court held that
public agencies may not impair an individual’s privi-
lege against self-incrimination by compelling incrimi-
nating answers, or by requiring a waiver of immunity.
See id.; Gardner, 392 U.S. at 278. Neither case in-
volved the legality of a search under the Fourth
Amendment. Accordingly, neither Gardner nor Unt-
formed Sanitation Men would have put defendants on
notice that Chief Wells’s order to Delia, with no
attendant threat to his employment, constituted a
violation of the Fourth Amendment.

Delia also cites this court’s decision in Gates. In
Gates, a police officer was served with an administra-
tive warrant to search his garage. Gates, 907 F.2d at
883. When the plaintiff refused to permit the search,
he was fired fur insubordination. Jd. Relying on the

App. 24

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
appellants 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 guaranteed to him under
the constitution.” Jd. 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 Sanita-
tion Men, would hardly have put defendants on notice
that their conduct here violated the Fourth Amend-
ment. Thus, Delia has not demonstrated that a
constitutional right was clearly established as of the
date of Chief Wells’s order, such that defendants
would have known that their actions were unlawful.
Accordingly, we affirm the district court’s grant of
summary judgment in favor of Chief Wells, Peel, and
Bekker on the ground of qualified immunity.

B. Qualified Immunity - Filarsky

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 contends that
Filarsky, as a private attorney, is not entitled to
qualified immunity. Filarsky, on the other hand,

App. 25

argues that this is a distinction without a difference.
He urges this court to follow the Sixth Circuit Court
of Appeals’s decision in Cullinan 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. /d. 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.” Jd. In arriving at this conclusion,
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 immu-
nity for certain private defendants, such as doctors or
lawyers who performed services at the behest of the
sovereign.” Cullinan, 128 F.3d at 310.

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 1148, 1149 n.3 (9th Cir. 2007))
(“Ordinarily, panels cannot overrule a circuit prece-
dent; that power is reserved to the circuit court
sitting en banc.”). 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

App. 26

entitled tc qualified immunity. /d. at 834-35. In
Gonzalez, the defendant, a private attorney, was
retained to defend Los Angeles County in an under-
lying civil rights suit brought by the plaintiff. Jd. at
834. The attorney accessed the plaintiff’s juvenile
court file without notifying him and without obtain-
ing authorization from the juvenile court. /d. The
attorney employed information from the file in depos-
ing the plaintiff. Jd. The plaintiff brought suit against
the attorney, her law firm, and the county “for access-
ing and using his juvenile court file without authori-
zation.” Jd. The plaintiff alleged that this conduct
constituted a violation of his Fourth and Fourteenth
Amendment rights. Jd. 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 favor-
ing an extension of governmental immunity’ to pri-
vate parties in her position.” /d. at 835 (quoting
Richardson, 521 U.S. at 412); see Wyatt v. Cole, 504
U.S. 158, 168-69 (1992) (holding that private defend-
ants in § 1983 suit for “invoking a state replevin,
garnishment, or attachment statute” later declared
unconstitutional were not entitled to qualified im-
munity from suit); cf. Pollard v. The Geo Group, Inc.,
607 F.3d 583, 602 (9th Cir. 2010) (observing that
“(uJnlike officers employed by public prisons,” em-
ployees 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

App. 27

did not provide immunity to private attorneys con-
spiring with a judge to deprive someone of their
constitutional rights”). Filarsky does not allege any
intervening en banc decision, Supreme Court deci-
sion, 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
summary judgment in his favor and remand for trial,
or further proceedings as determined by the district

6
court.

C. Municipal Liability

Finally, we consider whether the City may be
held liable under § 1983 for the individual defen-
dants’ 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

* 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
Executives’ 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); Franklin v. Fox, 312 F.3d
423, 444 (9th Cir. 2002).

App. 28

constitutional rights. Monell, 436 U.S. at 690-91. In
Monell, the United States Supreme Court held that
municipalities are “persons” subject to damages
liability under § 1983 where it has caused a constitu-
tional tort through “a policy statement, ordinance,
regulation, or decision officially adopted and promul-
gated by that body’s officers.” Jd. at 690. The Court
further observed that § 1983 also authorizes suit “for
constitutional deprivations visited pursuant to gov-
ernmental ‘custom’ even though such a custom has
not received formal approval through the _ body’s
official decisionmaking channels.” /d. at 690-691. The
Court, however, specifically rejected the use of the
doctrine of respondeat supertor to hold a municipality
liable for the unconstitutional acts of its employees.
The Court instructed that municipalities could be
held lable 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.” Jd.
at 694. “|T|he touchstone of ‘official policy’ is designed
‘to distinguish acts of the municipality 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. Louts 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 uncon-
stitutional government policy could be inferred from a

App. 29

single decision taken by the highest officials re-
sponsible for setting policy in that area of the gov-
ernment’s business.” Praprotnik, 485 U.S. at 123.
Under this paradigm, however, “[m]Junicipal 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.

Thus, tn order to establish an official policy or
custom sufficient for Monell liability, a plaintiff must
show a constitutional right violation resulting from
(1) an employee acting pursuant to an expressly
adopted official policy; (2) an employee acting pursu-
ant to a longstanding practice or custom; 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, 954-
85 (9th Cir. 2002); Gillette v. Delmore, 979 F.2d 1342,
1346-47 (9th Cir. 1992). Dela 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 insulation. 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.

This leaves only the third means of establishing
municipal lability available to Delia, that he was

App. 30

injured by an employee of the City with “final policy-
making authority.” /d. 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 defendants
had final policymaking authority. “(W|hether a par-
ticular 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 “[aluthority
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 policy-
making authority’ is a question of state law.’”) (quot-
ing 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.”).

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 Department. Instead, the City Council
is vested with exclusive final policymaking authority
for the Fire Department. Rialto Ordinance Chapter
2.34 governs the City’s Fire Department. Section
2.34.020 provides:

The fire department is a department
within the framework of the city’s adminis-
trative organization and is governed by state

App. 31

and federal laws pertaining thereto and the
ordinances, policies and procedures estab-
lished by the city council.

RIALTO, CAL., ORDINANCES § 2.34.020 (emphasis
added). Section 2.34.030, which concerns the estab-
lishment of a Fire Chief, provides:

There is a chief of the fire department
who is subject to the general supervision of
the city administrator and with the approval
of the city council, solely responsible for the
management and conduct of the department.

RiaALro, 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 procedures pertaining to the en-
forcement of rules and regulations for
the government and operation of the fire
department and pertaining to the pre-
vention and control of fires; to adminis-
ter such policies and procedures when
approved and to conduct such activities
for the city;

H. To carry out such other affairs and as-
signments as he/she is assigned by the
city council by resolution, or to carry out

App. 32

other functions as described of the fire
chief in other provisions of this code;

I. To be responsible for the general super-
vision and administration of the fire
safety division.

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

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 distinguished final policymaking
authority from final decisionmaking authority, ob-
serving that:

The fact that a particular official — even a
policymaking official — has discretion in the
exercise of particular functions does not,
without more, give rise to municipal labilty
based on an exercise of that discretion. The
official must also be responsible for estab-
lishing 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 discretion to hire and fire employees
without also being the county official respon-
sible for establishing county employment

App. 33

policy. lf this were the case, the Sheriff’s de-
cisions respecting employment would not
give rise to municipal liability, although sim-
ilar decisions with respect to law enforce-
ment practices, over which the Sheriff zs the
official policymaker, would give rise to mu-
nicipal liability. Instead, if county employ-
ment 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 discretion to hire and fire employees
and the Sheriff exercised that discretion in
an unconstitutional manner; the decision to
act unlawfully would not be a decision of the
Board. However, if the Board delegated its
power to establish final employment policy to
the Sheriff, the Sheriff’s decisions would
represent county policy and could give rise to
municipal lability.

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

The facts here mirror the Pembaur illustration.
Chief Wells clearly had supervisory and _ final
decisionmaking authority over the City’s Fire De-
partment. In that capacity, he signed the order re-
quiring Delia to produce the rolls of insulation. The
record, however, is devoid of any evidence that Chief
Wells’s authority included responsibility for establish-
ing final departmental policy. To the contrary, the
City’s Code of Ordinances places policymaking au-
thority 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 council’s

App. 34

decisions would provide a basis for city lability. No
such decisions appear in the record. As the Supreme
Court cautioned in Praprotnik, “a federal court would
not be justified in assuming that municipal policy-
making 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 authority. This argument confuses
final decisionmaking authority with final policy-
making 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 indistinguishable from
respondeat superior liability.” Praprotnik, 485 U.S. at
126 (cautioning that “[iJf the mere exercise of dis-
cretion by an employee could give rise to a constitu-
tional violation, 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 over-
rule the unconstitutional discretionary acts of sub-
ordinates 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

App. 35

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 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. /d. at 1350. In arriving at this
conclusion, this court observed that the fire chief’s
discretionary authority to hire and fire employees,
standing alone, was “not sufficient to establish a
basis for municipal liability.” Jd. 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.” Jd. (emphasis
added). In the absence of any evidence that the fire
chief actually made policy, this court found that he
was not a final policymaker. /d.; 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 discipline
of employees”, where he was not the city official
responsible for establishing final departmental em-
ployment 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. /d. In reaching this con-
clusion, the court noted that although the fire chief

App. 36

had final decisionmaking authority regarding em-
ployment promotions, there was no evidence that he
was also delegated with authority to make final
municipal policy regarding employment practices. /d.;
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 sub-
ject to review by the city administrator “had no
authority as the ‘highest official responsible for
setting policy.’”).

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 identical 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. Jd. at 963-64. 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 au-
thority’ over employer-employee relations in the City
of Greensboro rests only with the City Council and
the City Manager.” /d. 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.” /d.; 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

App. 37

department, he did not have “final policymaking
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 Ordi-
nances. 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
Amendment 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 oc-
curred as a result of the direct threat of sanctions, we
hold that the warrantless compelled search of Delia’s
home violated his rights under the Fourth Amend-
ment. Nevertheless, we conclude that these defend-
ants are entitled to qualified immunity because Delia
has not established that this constitutional 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 turther
conclude 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

App. 38

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.

App. 39

HOWARD B. GOLDS, Bar No. 112626
Howard.Golds@bbklaw.com

CYNTHIA M. GERMANO, Bar No. 151360
Cynthia.Germano@bbklaw.com

BEST BEST & KRIEGER LLP

3750 University Avenue, Suite 400

P.O. Box 1028

Riverside, CA 92502

Telephone: (951) 686-1450

Telecopier: (951) 686-3083

Attorneys for Defendants
City of Rialto City of Rialto Fire Department,
Stephen C. Wells, Mike Peel, and Frank Bekker

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NICHOLAS B. DELIA,
Plaintiff,

v. |
CITY OF RIALTO, a Public Entity;
CITY OF RIALTO FIRE DEPART-
MENT, a Public Agency; STEPHEN

C. WELLS, Individually and as the — ol da
Fire Chief for the City of Rialto; MIKE R (PLAx)

PEEL Individually and as a Battalion
Chief for the City of Rialto; FRANK |JUDGMENT
BEKKER, Individually and as a 9
Battalion Chief for the City of Rialto; silenesrsspegnt said
STEVE A. FILARSKY, Individually
and as Internal Affairs Investigator
for the City of Rialto; and DOES 1
THROUGH 10 INCLUSIVE,

Defendants.

App. 40

JUDGMENT

This matter came on regularly for hearing on
Februa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0680%3A0. Public record. Not legal advice.