Record and brief — Filarsky v. Delia

Supreme Court brief2012

Ask Donna

What actually matters in this document.

Text

DOCKET

? SUPREME COURT

vs OF THE UNITED STATES

No. 10-1018

Title:

Docketed:

Lower Ct:

Case Nos.:

Steve A. Filarsky, Petitioner

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

~~~Date~~~

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 18 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 A. 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 amicus 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

CERTIORAR!

tT)

yprame Court, U.%s.-

OLE D

Bn The

Supreme Court of the Anited States

6 —n

STEVE A. FILARSKY, ESQ..

Petitioner.

NICHOLAS B. DELIA,

Respondent.

iiteenann

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FORA 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 90017

(213) 615-7000

jht@gilbertkelly.com

jealderon@gilbertkelly.com

Counsel for Petitioner

COCKLE LAW RRIEF PRINTING: C0) (een 2b) Cons

OX CALL COLLECT é geres 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.” /d. 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.

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.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW............ i

PARTIES TO THE PROCEEDING ........................ il

cn os ciaugeauesesousousenreusonse 1

a 1

CONSTITUTIONAL AND STATUTORY PROVI-

i ciccas atenesindidscsdecessexeresessers

STATEMENT OF THE CASE................:c-ceseceeeeees-

REASONS TO GRANT THE PETITION ..............

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-

EERSTE SS SSS

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” .....................

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

li. 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

CAPPS PR TIOS ic cvitesclavciesescicaciseinieaiaielamaiciceestintenl 35

APPENDIX

Ninth Circuit Order denying rehearing en banc

and Amended Opinion — reported at 621 F.3d

Se Ce Ga ee aicsid pki ckidecelincocespasaidasen App. 1

Opinion of the United States District Court for

the Central District of California, including

the Judgment and Statement of Uncontro-

WII OR cee scsuvesinsiveminettzccdoleniatamuicdaes App. 39

United States District Court for the Central

District of California grant of Summary

os rrcnteninitddcdacectsintacncaretmmaitonmtioasa App. 50

TABLE OF CONTENTS ~ Continued

Page

Petitioner Steve A. Filarsky, Esq.’s Motion for

Summary Judgment, or in the alternative

er Ree tee App. 52

Petitioner Steve A. Filarsky, Esq.’s Declaration

in support of his Motion for Summary Judg-

ment, or in the alternative summary adjudi-

CUD oa stccacactrcnmicotcsnnsucosanusbiansicutincenectncromerns App. 87

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.

ME Kihciheiicicbibesoansibdiie imbibe dating masa Tipeiata ee a as 12

Cullinan v. Abramson, 128 F.3d 301 (6th Cir.

EF vicciaasaienibvaeuheniloedam se ndbildaimnadsumebanieael passim

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

A Ra IER te hGy Oe Maceo Re on eRe SS tA TE EE STEP meds: 1

Eagon ex rel. Eagon v. City of Elk City, 72 F.3d

I I I I accel a a at 13

Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.

SID: tices sicnsdisnarnepibanhsediinmaltipiinnceaela sancti biumcaianaimbbadsaiaa passim

Lee v. Wyatt, 2009 U.S. Dist. LEXIS 47357

(U.S. Dist. Ct. for the Western Dist. of Okla-

TR ___,_ FRREEES PEED renee RRO RIES TOSCO POOL SOE OPT REPEL Ro 13

Richardson v. McKnight, 521 U.S. 399 (1997).... passim

Tower v. Glover, 467 U.S. 914 (1984).................... 15,18

Wyott wv. Cale, 504 U.S. 158 (1908) ... ............ccececc.c000- 17

CONSTITUTIONAL PROVISIONS AND FEDERAL STATUTES

Ree So. IN OO a ee 2.7.38

vii

TABLE OF AUTHORITIES — Continued

Page

A ar ts, IE SU ncttadhunicanntddasatanwectaiavneunts passim

Federal Rules of Civil Procedure, Rule 12................. 30

MISCELLANEOUS

J. Bishop, Commentaries on Non-Contract Law

Se OF I isis cdiecketdastincncdcsneagpeceansinassriwiewiais 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

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).

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

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

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

58-89.

On September 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

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 whatsoever. 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

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.

Thereafter, no less than four (4) union represen-

tatives were called and summoned by Delia’s counsel

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 Peel 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.

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 ofa

“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.

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 demonstrat[ed] 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 complainled}.” App., infra, 49.

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 Iowa, 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 F ilarsky 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 v.

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. Jd. 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

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.

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,

the standards it adopted — closely examining the

history of and policy rationales for qualified immu-

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

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.”

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.

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

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 Richarcson 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

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 ceter-

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,

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

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 lhabil-

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

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

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:

[W]e 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

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 part 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.”

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.,

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 did 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.

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.

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.

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

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

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

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 cf 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

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

not he += 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

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

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

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 ov.

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 preciuded. 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

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.

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 No. 09-55514

DEPARTMENT, a Public Agency; D.C.No

STEPHEN C. WELLS, Individuall Sic :

and as the Fire Chief for the 2:08-cv-03359-R-PLA

City of Rialto; MIKE PEEL, ORDER AMENDING

Individually and as Battalion OPINION AND

Chief for the City of Rialto; DENYING PETITION

FRANK BEKKER, Individually FOR REHEARING

and as Battalion Chief for EN BANC AND

the City of Rialto; STEVE A. AMENDED OPINION

FILARSKY, Individually and

as an Internal Affairs

Investigator for the

City of Rialto,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

June 11, 2010 — Pasadena, California

Filed September 9, 2010

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

bane 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 lable 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 “lilf 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 rolls 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.

App. 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.”); E.£.0.C. v. Exxon Shipping Co., 745 F.2d 967, 974 (5th

Cir. 1984) (observing that “to the extent the [trial] court’s

statements from the bench conflict with its formal findings and

conclusions, we do not consider them.”); Hlarbor 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..

il. 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).

It. 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 uv.

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, “(t]he 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. Katz, 533

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

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

at 818; see James v. 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, “(t]he

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, 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 than 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]ne of

the foundations of the fourth amendment is the right

of the people ‘to be secure in their ... houses.’”); cf.

New York v. Harris, 495 U.S. 14, 17 (1990) (“{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. Jd. 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 Rialio

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 roum 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. Jd. This

court found that the defendant had opened the door

in response to a claim of lawful authority, not volun-

tarily. Jd. 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 light 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-

stoner 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.” 7d. 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 for 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 lew ‘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.’” Jn 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 11438, 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 to qualified immunity. Jd. 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 extenston 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

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 uv.

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.” Id. 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 liable only when an injury was inflicted by a

city’s “law-makers or by those whose edicts or acts

may fairly be said to represent official policy.” /d.

at €94. “|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, “[mJunicipal 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, in 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, 984-

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

1346-47 (9th Cir. 1992). Delia has not directed us to

any policy, officially adopted and promulgated by the

City. Nor has he established a practice, so permanent

and well-settled so as to constitute a custom, that

existed and through which Chief Wells acted in

ordering Delia to produce the rolls of 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 liability 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.

RIALTO, CAL., ORDINANCES § 2.34.030 (emphasis

added). Finally, § 2.34.040 specifies the duties of the

City’s Fire Chief, providing in pertinent part as

follows:

The duties of the fire chief include, but

are not limited to, the following:

A. To formulate and recommend policies

and 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 liability

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 is 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

§§ 2.384.020, 2.34.030. Thus, only the city council’s

App. 34

decisions would provide a basis for city hability. 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 lability,

“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. Jd.; 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. Jd. 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.” Jd. 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 further

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 wo <ogte we

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 Bp: 9

Battalion Chief for the City of Rialto; sab yagersarciche meets

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

February 2, 2009, at 10:00 a.m. in Courtroom 8 of the

above-entitled Court, the Honorable Judge Manuel L.

Real presiding. Defendants and moving parties the

City of Rialto, Stephen Wells, Mike Peel and Frank

Bekker appeared by their attorneys of record Best

Best & Krieger LLP by Howard B. Golds. Defendant

Steve Filarsky appeared by his attorneys of record

Gilbert, Kelly, Crowley & Jennett, LLP by Jon H.

Tisdale. Plaintiff Nicholas B. Delia appeared by his

attorneys of record Lackie, Dammeier & McGill by

Sanjay Bansal.

The Court, having considered the Motion for

Summary Judgment or Alternatively, Partial Sum-

mary Judgment brought by Defendants City of Rialto,

Stephen Wells, Mike Peel and Frank Bekker and the

Motion for Summary Judgment or Alternatively,

Partial Summary Judgment brought by defendant

Steve Filarsky, rules as follows:

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Judgment in the above-captioned

matter be, and hereby is, entered in favor of Defen-

dants City of Rialto, Stephen Wells, Mike Peel, Frank

Bekker and Steve Filarsky (“Defendants”) and that

plaintiff Nicholas Delia shall take nothing by way of

his Complaint.

App. 41

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that Defendants shall recover their costs

of suit herein.

Dated: March 9, 2009

/s/ Real

UNITED STATES

DISTRICT COURT JUDGE

App. 42

HOWARD B. GOLDS, Bar No. 112626

Howard.Golids@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,

CITY OF RIALTO, a Public Entity;

CITY OF RIALTO FIRE DEPART-

MENT, a Public Agency; STEPHEN [5° N00

C. WELLS, Individually and as the R(PLAx)

Fire Chief for the City of Rialto; MIKE

PEEL Individually and as a Battalion |STATEMENT OF

Chief for the City of Rialto; FRANK |[UNCONTRO-

BEKKER, Individually and as a VERTED FACTS

Battalion Chief for the City of Rialto;

STEVE A. FILARSKY, Individually {P"°* Ma" 9, 200°)

and as Internal Affairs Investigator

for the City of Rialto; and DOES 1

THROUGH 10 INCLUSIVE,

Defendants.

App. 43

The Motions for Summary Judgment or in the

alternative Partial Summary Judgment (“Motions”) of

Defendants City of Rialto (“City”), Stephen C. Wells

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

and Steve Filarsky (“Filarsky”) came on regularly for

hearing on February 2, 2009, in Courtroom 8 of the

above-entitled Court, the Honorable Judge Manuel L.

Real presiding. Defendants and moving parties the

City of Rialto, Stephen Wells, Mike Peel and Frank

Bekker appeared by their attorneys of record Best

Best & Krieger LLP by Howard B. Golds. Defendant

Steve Filarsky appeared by his attorneys of record

Gilbert, Kelly, Crowley & Jennett, LLP by Jon H.

Tisdale. Plaintiff Nicholas B. Delia (“Delia”) appeared

by his attorneys of record Lackie, Dammeier & McGill

by Sanjay Bansal.

After consideration of the papers in support of

and in opposition to the Motions for Summary Judg-

ment or in the Alternative, Partial Summary Judg-

ment and the argument of counsel, the Court

determines that the following facts and conclusions of

law have been established:

UNCONTROVERTED FACTS

1. Delia began his employment with the City’s

Fire Department in July 2000 as a “Fire Fighter,” and

was subsequently promoted to the rank of “Engineer.”

However, in February 2006, the City determined that

grounds existed te discipline Delia and it proposed

that he be demoted back to the rank of “Fire Fighter.”

App. 44

After a Skelly Hearing was held in May 2006, a final

decision was made to demote Delia in June 2006.

(Transcript of Deposition of Nicolas Delia taken on

December 17, 2008 (“Delia Depo ”), pp. 6:20-22; 72:4-

9.)

2. In August 2006 while on duty, Delia was

assisting in the control of a toxic spill when he began

to feel ill. He was transported to the hospital and

ultimately given an off-work order by a doctor for a

period of three shifts. (Delia Depo,. pp. 12:8-13:5;

14:3-7.)

3. The City became suspicious of Delia’s off-

work status because of the circumstances involving

his previous discipline, in that he was at the time

appealing his demotion. The City thereupon hired a

private investigation company to conduct surveillance

of Delia while he was off work and during that inves-

tigation, Delia was filmed buying building supplies,

including rolls of fiberglass building insulation, at a

local Lowe’s home improvement store. Based upon

that evidence, the City decided to undertake a formal

internal affairs investigation of Delia to determine

whether he was off-work based upon false pretenses.

In furtherance of the investigation, it was decided

that Delia would be interviewed by Filarsky. (Decla-

ration of Stephen C. Wells in Support of Motion for

Summary Judgment (“Wells Decl.”), {¥ 3, 4.)

4. At the time of the interview, Filarsky had for

a number of years been regularly representing the

City and providing legal advice to it regarding labor

App. 45

and employment issues. As part of that work,

Filarsky had previously questioned Fire Department

employees in internal affairs investigations. (Wells

Decl., ¥ 4.)

5. Filarsky’s interview of Delia took place

starting on September 18, 2006. In attendance were

Filarsky, Peel, Bekker, Delia and Delia’s legal coun-

sel, Stuart Adams (“Adams”). The interview was tape

recorded and subsequently transcribed (“Transcript”).

(See Declaration of Michael Peel in Support of Motion

for Summary Judgment (“Peel Decl.”), Exhibit “A;”

Peel Decl., | 5; Delia Depo, pp. 41:17-42:8.)

6. Both Peel and Bekker were asked to attend

the interview, although neither had any specific role

in the interview other than to witness the events.

(Peel Decl., 4 2; Declaration of Frank Bekker in

Support of Motion for Summary Judgment (“Bekker

Decl.”), 4 2; Wells Decl., ¥ 5.)

7. Peel spoke once during the interview when

he was asked at the very beginning by Filarsky to go

through the formality of ordering Delia to answer the

questions truthfully. Peel never spoke again and

Bekker never spoke at all. (Transcript, p. 1:33-34; ;

Peel Decl., 4 5; Bekker Decl., 4 5.)

8. The interview began at 10:02 a.m. and after

some preliminary questioning, Filarsky began to

question Delia about what had been purchased at

Lowe’s. Delia described some lumber and the building

insulation and specifically stated that the insulation

had not been installed and was sitting in his kitchen.

App. 46

Filarsky subsequently showed Delia video tape taken

of him making purchases at Lowe’s, including his

purchase of the fiberglass insulation. (Transcript,

pp. 30:38-31:30; 23:17-24:38.)

9. At some point during the interview, Filarsky

asked Delia to produce the insulation for inspection

and informed Delia that if he was able to do so, he

would be exonerated from the charges that were the

basis for the internal affairs investigation. Adams

advised Delia that he didn’t need to produce the

materials, Filarsky and Adams then got into a fairly

heated dispute over whether an inspection would be

allowed, and then at some point Adams threatened to

sue both Peel and Bekker. (Peel Decl., 9 3, 4; Bekker

Decl., 93, 4; Transcript, pp. 35:27-44:39.) During a

break in the interview Filarsky consulted with Wells.

Filarsky explained the situation involving the insula-

tion and his desire to order Delia to produce the

insulation. Wells did not understand or believe that

having Delia show the insulation outside his house

was a violation of Delia’s rights and, in fact, Wells did

not witness the arguments about this issue that

occurred between Filarsky and Adams and which are

reflected in the Transcript. Based on Filarsky’s com-

ments and advice, Wells issued the order and

rilarsky to conveyed the order to Delia. (Wells Decl.,

qq 5, 6.)

11. Neither Peel nor Bekker participated in any

discussions with Filarsky or Wells or anyone else

about whether Delia should be ordered to show the

building insulation, made the decision to issue the

App. 47

order, or communicated the order to Delia. However,

at the time Filarsky gave the order, both Peel and

Bekker believed that the order was legal, both be-

cause Filarsky was a lawyer and because Delia was

not being ordered to allow anybody to enter his house.

(Peel Decl., {QJ 6, 7; Bekker Decl., 44 6, 7.)

12. After the break, the interview then recom-

menced and after more discussion with Adams and

Delia’s refusal to voluntarily produce the insulation,

Filarsky ordered Delia to show the building insula-

tion to the City. (Peel Decl., 44; Bekker Decl., ] 4;

Transcript, pp. 34:24-35:25.)

13. After a lengthy break in the interview, the

parties reconvened at which time Delia was pre-

sented with a written order to produce the insulation

signed by Wells. Wells recalJs being told by Filarsky

that Delia’s attorney had demanded that the order to

show the insulation be put in writing, and believes

that Filarsky drafted it and then asked Wells to sign

it. (Wells Decl., 9 8 and Ex. “B;” Transcript, p. 54:14-

15.)

14. After the interview was finished, Peel and

Bekker followed Delia in a City vehicle to Delia’s

house where they waited a few minutes for Adams

who had gotten lost on the way. When Adams arrived,

Delia, Adams and a union representative went into

Delia’s house and brought out three or four rolls of

fiberglass building insulation which he placed on his

front lawn. Once finished, Pee] thanked Delia and

Peel and Bekker drove away. Filarsky was never

App. 48

present at Delia’s home. The entire process of putting

the insulation on the lawn and having it observed by

Peel and Bekker lasted about a minute. At no time

did Peel and Bekker ever leave their City vehicle

while they were parked at the curb in front of Delia’s

house and at no time did they enter Delia’s house.

Furthermore, the only thing removed by Delia from

his house and shown to Peel and Bekker were the

three or four rolls of fiberglass building insulation.

(Peel Decl., 4 8; Bekker Decl., {J 8.)

CONCLUSIONS OF LAW

1. Peel, Bekker, Wells and Filarsky are pro-

tected from liability by the doctrine of qualified

immunity as their conduct did not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known because Delia

has not demonstrated a violation of a clearly estab-

lished 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 plaintiffs house. Pearson uv.

Callahan, 555 U.S. __, (January 21, 2009, No. 07-

751), 172 L. Ed. 2d 565 (2009); Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); Mitchell v. Forsyth, 472 U.S.

511, 525-27 (1985); Saucier v. Katz, 533 U.S. 194, 202

(2001); Los Angeles Police Protective League v. Gates,

907 F.2d 879, 887-888 (9th Cir. 1990).

2. Delia’s claim against the City based on 42

U.S.C. section 1983 fails as a matter of law because

App. 49

neither Wells, Peel, Bekker nor Filarksy had final

policymaking authority, none was the policymaker for

the City for the purposes of the act about which Delia

complains and Delia has provided no evidence of any

longstanding practice or custom of the City or that

any official with final policy-making authority rati-

fied the conduct of which Delia complains. Cortez v.

County of Los Angeles, 294 F.3d 1186, 1189 (9th Cir.

2002); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004);

Ulrich v. City and County of San Francisco, 308 F.3d

968, 985; Zografos v. City of San Francisco, (Dec. 13,

2006, No. C 05-3881) N.D. Cal. [2006 Lexis 90101];

Collins v. City of San Diego, 841 F.2d 337 (9th Cir.

1988); St. Louis v. Praprotinik, 485 U.S. 112, 126

(1988); Gillette v. Delmore, 979 F.2d 1342 (9th Cir.

1992); Rialto Municipal Code sections 2.34.020,

2.34.030 and 2.34.040.

Dated: March 9, 2009

/s/ Real ae oe

UNITED STATES

DISTRICT COURT JUDGE

App. 50

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL

CASE NO.: CV 08-3359-R Date: FEB. 2, 2009

TITLE: NICHOLAS B. DELIA V. CITY OF RIALTO,

et al.

—— —_—_

— —- ——

PRESENT:

HON. MANUEL L. REAL, JUDGE

Ricardo Juarez Bridget Montero

Deputy Clerk Court Reporter

ATTORNEY PRESENT ATTORNEYS PRESENT

FOR PLAINTIFF: FOR DEFENDANTS:

Sanjay Banal Howard Golds

Jon Tisdale

PROCEEDINGS: 1) Defendants City of Rialto et

al’s Motion for Summary Judg-

ment; or, for partial summary

judgment [33]

2) Defendant Filarsky’s Motion

for Summary Judgment [34]

Court GRANTS both motions for sum-

mary judgment [33, 34].

Counsel for defendants shall prepare

the Statement of Uncontroverted Facts

and the Judgments.

App. 51

Plaintiff’s Motion for Partial Summary

Judgment [38] is hereby taken OFF cal-

endar as MOOT.

5 min

Initials of Deputy Clerk RJ

App. 52

GILBERT, KELLY, CROWLEY & JENNETT LLP

JON H. TISDALE, Bar No. 96977

JENNIFER WEST, Bar No. 234448

1055 West Seventh Street, Suite 2000

Los Angeles, California 90017-2577

Telephone: (213) 615-7000

Facsimile: (213) 615-7100

Attorneys for Defendant

STEVE A. FILARSKY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

NICHOLAS B. DELIA, Case No. CV 08-3359

ete? R-PLAx

Plaintiff

Assigned to Hon.

Manuel L. Real

CITY OF RIALTO, A Public

Individually and as an

JON H. TISDALE

)

Entity; CITY OF RIALTO ) DEFENDANT

FIRE DEPARTMENT,A =—)-« STEVE A.

Public Agency; STEPHEN ) FILARSKY’S NO-

C. WELLS, Individually and ) T1CE OF MOTION

as the Fire Chief for the ) AND MOTION FOR

City of Rialto; MIKE PEEL, ) SUMMARY JUDG-

Individually and as a ) MENT; MEMORAN-

Battalion Chief for the ) DUM OF POINTS :

City of Rialto; FRANK ) AND AUTHORITIES

BEKKER, Individually ) INSUPPORT,

and as a Battalion Chief ) DECLARATION OF

for the City of Rialto; ) STEVE A. FILARSKY

STEVE A. FILARSKY, ) IN SUPPORT,

) DECLARATION OF

)

App. 53

IN SUPPORT; (PRO-

POSED] ORDER

[Statement of Un-

controverted Facts

and Conclusions of

Internal Affairs Investi- )

)

Law Filed Concur-

)

gator for the City of Rialto;

and DOES 1 THROUGH

10, INCLUSIVE,

Defendants.

rently Herewith.|}

Date:

February 2, 2009

Time: 10:00 a.m.

Courtroom: 217/8

Please take notice that on February 2, 2009, at

10:00 a.m., or as soon thereafter as may be heard in

Courtroom “217/8” of the above entitled court, located

at 312 North Spring Street, Los Angeles, California

90012; Defendant STEVE A. FILARSKY (hereinafter

referred to as “Defendant FILARSKY’”) will move this

court for summary judgment pursuant to Federal

Rules of Civil Procedure, Rule 56, as to Plaintiff’s

Complaint against Defendant FILARSKY.

This Motion will be made on the following

grounds:

e In the instant action, Defendant FILARSKY,

an attorney licensed in California, was

retained by the City of Rialto to participate

in an internal affairs investigation and pro-

vide legal advice in connection with person-

nel issues. As retained special counsel

representing the City of Rialto in connection

with internal personnel matters, Defendant

FILARSKY may assert and is protected by

App. 54

the doctrine of qualified immunity to the

same extent as any city official or other

direct employee of the city.

At the time Defendant FILARSKY was act-

ing in his retained capacity of independent

counsel for the City of Rialto, there was no

obligation and/or duty imposed on Defendant

FILARSKY to countermand the City’s deci-

sion to order Plaintiff to produce specified

building materials which plaintiff explained

would exonerate him. Moreover, any reason-

able attorney in Defendant FILARSKY’s

position would not have known that the re-

quest for Plaintiff to produce the specified

building materials would conceivably consti-

tute an unconstitutional “search” as alleged

by plaintiff in view of the fact that the law

was not clearly established that this action

would constitute a violation of Plaintiff’s

constitutional rights under the 4th or 14th

Amendments of the United States Constitu-

tion.

Defendant FILARSKY is therefore entitled

to summary judgment based upon the fact

that he is entitled, as a matter of law, to as-

sert the doctrine of qualified immunity, and

that he is entitled, as a matter of law, to its

full protection from any personal liability

(and in fact from suit itself) for his alleged

participation in what Plaintiff characterizes

as an alleged unconstitutional “search”.

The threshold determination of whether the

law governing the conduct at issue was clearly

App. 55

established is purely a question of law for the

court. A determination, of reasonableness,

although it may require consideration of fac-

tual issues, is appropriate for summary

judgment if the facts are undisputed. Here,

Defendant FILARSKY was sued in an indi-

vidual capacity and as an Internal Affairs

Investigator for the City of Rialto, along with

co-defendants City of Rialto and its employees.

Both the City of Rialto and its employees are

entitled to assert the doctrine of qualified

immunity for any personal liability for their

actions taken “under color of state law”. In

addition, an attorney for the City is entitled

to assert the doctrine of qualified immunity

for any personal liability for actions taken

“under color of state law”. Clearly, Defendant

FILARSKY was retained by the City of Rial-

to as a lawyer experienced in personnel and

internal affairs matters, notwithstanding the

rather odd differentiation offered by Plaintiff

to suggest that FILARSKY played an indi-

vidual role as opposed to his role as outside

legal counsel on behalf of the City of Rialto.

Accordingly, there is no genuine issue of ma-

terial fact as to the capacity in which

FILARSKY was acting and he is therefore

entitled to summary judgment as a matter of

law.

This Motion is based upon this Notice, the Mem-

orandum of Points and Authorities in support thereof,

the concurrently filed Declarations of Steve A.

Filarsky and Jon H. Tisdale, the Exhibits attached

thereto, the records and pleadings on file herein, and

App. 56

upon all such other oral and documentary evidence as

may be presented at the time of the hearing.

Dated: January 12th, 2009

GILBERT, KELLY, CROWLEY &

JENNETT, LLP

By: /s/ Jennifer West _

JOHN H. TISDALE

JENNIFER WEST

Attorneys for Defendant

STEVE A. FILARSKY

TABLE OF CONTENTS

Page

I STATEMENT OF FACTS/SUMMARY OF

fig kg INOS Si Tes forte BEL Sp. eA eee an 4

Il. SUMMARY OF THE ARGUMENT............. 8

Ill. SUMMARY JUDGMENT IS PROCE-

eg EB 8 Leet eee cae eee S)

IV. QUALIFIED IMMUNITY IS CATEGORI-

CALLY AVAILABLE TO DEFENDANT ..... 12

V. PLAINTIFF HAS NOT FOR PURPOSES

OF SUMMARY JUDGMENT DEMON-

STRATED THAT HE WAS DEPRIVED

OF A CONSTITUTIONAL RIGHT UNDER

THE FOURTH OR FOURTEENTH AMEND-

MENTS BY DEFENDANT FILARSKY...... 15

or aNeRARI I On ie cen rekanbeen 15

b. Fourteenth Amendment.......................- 16

App. 57

VI. IT WOULD NOT HAVE BEEN CLEAR TO

ANY REASONABLE ATTORNEY THAT

DEFENDANT FILARSKYS CONDUCT

WAS UNLAWFUL IN THE SITUATION

Fe COPE Gee 0 MBER ov esicinisticssscoverssshinasonnaees 17

VIIlL DEFENDANT FILARSKY IS ENTITLED

TO QUALIFIED IMMUNITY IN THIS

CASE AS THE ALLEGED SEARCH WAS

VOLUNTARILY CONSENTED TO BY

EDD F OMRRRO ROE ascceicasieiceeeicavsaeeverenanen ey 19

VE... CORRRUR eae ee cece sccescsdevdevssvelescunsecnereenaen 20

MEMORANDUM OF POINTS

AND AUTHORITIES

I STATEMENT OF FACTS/SUMMARY OF

THE ARGUMENT.

This is an action by plaintiff NICHOLAS B

DELIA (hereinafter “Plaintiff”) for the alleged viola-

tion of his civil rights. The Complaint alleges that in

or about September 2006, Plaintiff was compelled

under threat of insubordination and termination, to

go to his home and produce certain private property

for examination to “Defendants.”’ The Complaint

further alleges that Defendants FILARSKY, Peel,

Bekker, and Wells gave the unlawful order for said

search and, as such, violated Plaintiff’s constitutional

rights.”

' See, Complaint, 99, attached hereto as Exhibit “A”.

* See, Complaint, 99, attached hereto as Exhibit “A”.

App. 58

The crux of Plaintiff’s contention is that Defen-

dant Steve A. Filarsky (“FILARSKY”) 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 “City”). City

retained FILARSKY solely to participate in internal

affairs investigations with respect to City employees.

It is alleged that in doing the acts alleged herein,

Defendant FILARSKY acted under color of state law,

within the course and scope of employment, and as an

official policy-maker of the City.” The Complaint

further prays for general, special, and exemplary

damages for civil rights violations along with attor-

ney’s fees and costs.°

On September 18, 2006, an interview of Plaintiff

was conducted in connection with an internal investi-

gation; the subject matter of the investigation was

the suspected inappropriate use of “sick time” by

DELIA to work on a home remodeling project.* Battal-

ion Chiefs Mike Peel and Frank Bekker, Plaintiff’s

attorney Stuart Adams, and Defendant FILARSKY

were present (hereinafter collectively referred to as

* See, Complaint, 74, attached hereto as Exhibit “A”.

* See, Complaint 95, attached hereto as Exhibit “A”.

* See, Complaint| 915, 16 attached hereto as Exhibit “A”.

* See, Declaration of Defendant FILARSKY, 46; see also

Deposition of Plaintiff p.24, Ins. 2-6, attached to the Declaration

of Jon H. Tisdale as Exhibit “B”.

App. 59

“Battalion Chiefs”).’ Fire Chief Stephen Wells was

nearby in the same building and available, although

not present in the room for the interview.” On behalf

of City, Defendant FILARSKY was investigating

Plaintiff based upon a sub rosa videotape which

showed him purchasing building materials and

unloading them at his home on a “sick” day.” Defen-

dant FILARSKY was retained as outside legal coun-

sel by the City because he was a lawyer and because

he was experienced in personnel] and internal affairs

matters.” Defendant FILARSKY has_ conducted

numerous investigations on behalf of the City, and

has always been expected to conduct not only the

investigations and interviews, but provide legal

analysis, propose alternative disciplinary actions,

draft correspondence regarding disciplinary actions

directed by City employees, and conduct or partici-

pate in legal proceedings/hearings.'' As such, Mr.

Filarsky would not have been retained by the City to

perform legal services had he not been a licensed

attorney.

" See, Declaration of Defendant FILARSKY, 47: see also

Deposition of Plaintiff p.27. Ins. 7-18, attached to the Declara-

tion of Jon H. Tisdale as Exhibit “B”.

* See, Declaration of Defendant FILARSKY 47.

* See, Declaration of Defendant FILARSKY, 46; see also

Deposition of Plaintiff, p. 29, Ins. 11-22, attached to declaration

of Jon H. Tisdale as Exhibit “B”.

’° See, Declaration of Defendant FLLARSKY, 95.

See, Declaration of Defendant FILARSKY, 494.

App. 60

The City had videotaped Plaintiff purchasing and

loading plywood, lumber and rolls of fiberglass insu-

lation at Lowe’s Home Improvement Center (here-

inafter referred to as the “Subject Building

Materials”). At the interview of September 18, 2006,

Plaintiff indicated in Ais defense that he did not

incorporate the Subject Building Materials into his

home remodeling project and that the Subject Build-

ing Materials remained unused at his residence.”

At the commencement of the interview,

FILARSKY had no way of knowing in advance what

explanation DELIA might offer in his defense of what

was depicted in the videotape. Certainly, going into

the interview, no one could reasonably have foreseen

that DELIA would offer in his own defense an

explanation that could so easily be corroborated by

nothing more than simply showing the Subject Build-

ing Materials to his superiors." During the investiga-

tion it became apparent from Plaintiff’s responses

that the Subject Building Materials were still in

Piaintiff’s kitchen and had not been incorporated into

the walls.” At that point, there was a break in the

* See, Declaration of Defendant FILARSKY, 46.

" See, Declaration of Defendant FILARSKY, 49; see also,

written transcript of recording of Plaintiff’s interview, attached

thereto as Exhibit “A” to FILARSKY Declaration, pgs. 23-24,

Ins. 24-47; 1-5.

“ See, Declaration of Defendant FILARSKY, 48.

'** See, Declaration of Defendant FILARSKY, 9; see also,

written transcript of recording of Plaintiff’s interview, attached

(Continued on following page)

App. 61

interview.” It was then suggested that if Plaintiif

would simply show the Battalion Chiefs the Subject

Building Materials, the investigation would be over

and it would be resolved in DELIA’s favor with no

disciplinary action.”

The interview was then resumed and, at the

direction of Chief Wells, it was requested that Plain-

tiff go home and produce the Subject Building Mate-

rials for his superiors in order to dispel questions

relating to the allegation of misused sick leave." Prior

to issuing any order to produce the Subject Building

Materials, Defendant FILARSKY communicated

separately with Defendants Wells, Bekker, and Peel."

At that point in time, it was decided by Chief Wells to

ask Plaintiff DELIA’s permission for his superiors to

simply view the Subject Building Materials to verify

that they were still at Plaintiff’s residence, not yet

incorporated into the walls.” Plaintiff was represented

by attorney Stuart Adams; when DELIA was requested

to show the building materials to his superiors,

Adams advised DELIA to refuse to produce the build-

thereto as Exhibit “A” to FILARSKY Declaration, pgs. 23-24,

Ins. 24-47: 1-5.

* See, Declaration of Defendant FILARSKY, 410.

See, Declaration of Defendant FILARSKY, 911: see also,

Deposition of Plaintiff, p. 52, Ins. 3-9, attached hereto as Exhibit

= af

* See, Declaration of Defendant FILARSKY 711.

” See, Declaration of Defendant FILARSKY 410.

* See, Declaration of Defendant FILARSKY 911.

App. 62

ing materials.“ Based on advice of counsel by Mr.

Adams, Plaintiff denied the request.~ The request

was then clarified in the interview by FILARSKY, .

who indicated that the City had no intention of going

inside Plaintiff’s home at all but rather wanted

Plaintiff to simply bring out the Subject Building

Materials to the front yard for visual verification.”

Again, Adams advised DELIA not to do so, even

though it was expressly represented that the produc-

tion of the Subject Building Materials would com-

pletely exonerate DELIA and end the investigation.”

After another discussion off the record, Defen-

dant Wells, as the current Fire Chief, converted the

request to produce the Subject Building Materials

into a written order.” Defendant Wells had the final

authority to unilaterally order the production of

Subject Building Materials.” Defendant FILARSKY

had no authority to make such an order, unilaterally

” See, Declaration of Defendant FILARSKY, 912; see also,

copy of wmtten transcript of recording of Plaintiff’s Interview

attached thereto as Exhibit “A”, pg. 34. Ins. 10-19.

“ See, Declaration of Defendant FILARSKY, 913.

“ See, Declaration of Defendant FILARSKY, 914.

“ See, Declaration of Defendant FILARSKY, 414.

* See, Declaration of Defendant FILARSKY, 915; see also,

Plaintiff’s Deposition pgs. 45-46, Ins. 21-25; 1-3, attached as

Exhibit “B” to Declaration of Jon H. Tisdale.

*” See, Declaration of Defendant FILARSKY, 416.

App. 63

or otherwise.” At no point in time before and/or after

the order was issued was Plaintiff ever threatened to

produce the Subject Building Materials under threat

of insubordination and/or termination.” Defendant

Wells signed the final written order, which required

the production of the Subject Building Materials.”

Notwithstanding Mr. Adams advice to Plaintiff, he

voluntarily produced the Subject Building Materials

to the Battalion Chicfs after the order was issued.”

No one from the City or on behalf of the City ever

entered Plaintiff’s residence (or even set foot on his

property). In fact, the only city employees present at

DELIA’s home during the so called “search” were Peel

and Bekker and neither man ever got out of the car.”

* See, Declaration of Defendant FILARSKY, 917; see also,

copy of written transcript of Plaintiff’s Subject Investigation

attached thereto as Exhibit “A”, pg. 39, Ins. 36-48.

* See, Declaration of Defendant FILARSKY, 418; see also,

copy of written transcript of Plaintiff’s Subject Investigation

attached thereto as Exhibit “A”, and Deposition of Plaintiff, p.

51, Ins. 2-24, attached to Declaration of Jon H. Tisdale as

Exhibit “B”.

* See, Declaration of Defendant FILARSKY, 415; see also,

Exhibit “D” attached to Declaration of Jon H. Tisdale, Written

Order dated September 18, 2006, sent to Plaintiff by Defendant

Wells; and Plaintiff’s Deposition, pgs. 45-46; Ins. 21-25; 1-3,

attached to Declaration of Jon H. Tisdale as Exhibit “B”.

* See, Declaration of Defendant FILARSKY, 421.

" See, Declaration of Defendant FILARSKY, 421.

* See, Plaintiff's Deposition p. 58, Ins. 4-17, attached to

Declaration of Jon H. Tisdale as Exhibit “B”.

App. 64

Prior to issuing the order to produce the Subject

Building Materials, no less than four union repre-

sentatives were called and summoned by Plaintiff’s

counsel, Stuart Adams, to the interview to sit in and

listen while Plaintiff was ordered to drive to his

home, remove the Subject Building Materials from

inside, and show them to the Battalion Chiefs with-

out objection.” Moreover, Defendant FILARSKY

spoke to then City Attorney, Bob Owen, on the tele-

phone prior to issuing the order.“ Defendant

FILARSKY advised Mr. Owen of the circumstances

surrounding the investigation and the proposed

order.” Further, Mr. Adams called and spoke to Mr.

Owen prior to the order being issued.” Mr. Owen

posed no objection and Defendant FILARSKY was

advised to go forward with the order.” Lastly,

Defendant FILARSKY did not even personally

attend the alleged search.”

Specifically at issue is the applicability of the

doctrine of qualified immunity protecting Defendant

“ See, Declaration of Defendant FILARSKY, 919; Plain-

tiff’s Deposition pgs. 27 and 48, ins. 7-18 and 10-19, attached to

Declaration of Jon H. Tisdale as Exhibit “B”.

“ See, Declaration of Defendant FILARSKY, 720.

~” See, Declaration of Defendant FILARSKY, 920.

“ See, Plaintiff’s Deposition pgs. 43-44, Ins. 21-25; 1-2,

attached to Declaration of Jon H. Tisdale as Exhibit “B”.

” See, Declaration of Defendant FILARSKY, 420.

* See, Declaration of Defendant FILARSKY, 421; see also

Plaintiff’s Deposition p. 47, Ins. 13-14, attached to Declaration

of Jon H. Tisdale as Exhibit “B”.

App. 65

FILARSKY for his advisory role in providing legal

advice to the City relating to the alleged search of the

Subject Building Materials belonging to Plaintiff

By this Motion, Defendant FILARSKY moves for

Summary Judgment on Plaintiffs Complaint and

submits that while he was not a regular employee of

the City, Defendant FILARSKY was retained by the

City as an attorney and asked to assist in providing

legal advice in connection with personnel issues. As

retained outside counsel, Defendant FILARSKY may

therefore assert the doctrine of qualified immunity to

the same extent as any city official. Moreover, Plain-

tiff specifically contends that Defendant FILARSKY

“acted under color of state law”, within the course and

scope of his position with the City as “outside coun-

sel”, and as an official of the City. By this Motion,

Defendant FILARSKY further submits that because

he is entitled to the application and full protection of

the doctrine of qualified immunity, the remaining

individual capacity claims made against him must be

dismissed. Accordingly, there is no genuine issue of

material fact for such alleged actions, and Defendant

FILARSKY is entitled to summary judgment as a

matter of law.

ll. SUMMARY OF THE ARGUMENT

The individual capacity claims against Defendant

FILARSKY must be resolved by summary judgment

because Defendant FILARSKY is entitled to qualified

App. 66

immunity. Government officials performing discre-

tionary functions are “shielded from lability for civil

damages insofar as their conduct does not violate

clearly established statutory rights of which a rea-

sonable person would have known.” (Harlow v. Fitz-

gerald (1992) 457 U.S. 800, 818. Qualified immunity

is not merely immunity to liability, but immunity

from suit itself. (See, Babd v. Dorman, (5th Cir. 1994),

33 F.3d 472, 477.)

In the instant action, Defendant FILARSKY is

not an employee of the City per se; however, he was

clearly retained by the City in his capacity as an

attorney and specifically requested to assist it in

providing legal advice for personnel issues. Defendant

FILARSKY has conducted numerous investigations

on behalf of the City for the past fourteen years, and

has always been expected to conduct and direct not

only the investigative portion, but also provide legal

analysis, propose alternative disciplinary actions,

draft correspondence regarding the proposed discipli-

nary actions, and conduct or participate in legal

proceedings/hearings. As retained. counsel, Defen-

dant FILARSKY is therefore entitled to the blanket of

protection under the doctrine of qualified immunity to

the same extent any city official would be. (Cullinan

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

denied, 140 L.Ed. 2d. 792, 523 U.S. 1094 (1998),

holding that the rationales, for qualified immunity

* See, Declaration of Defendant FILARSKY, 993 and 4.

App. 67

unity apply to [private] lawyers and their firms in

about the same way they apply to {the government

attorney ].”)

By the language of the standing case law and the

uncontroverted facts of this case, there is no question

that Defendant FILARSKY is entitled to protection

under the doctrine of qualified immunity thereby

properly resolving the individual capacity claims

against him by summary judgment.

Ill. SUMMARY JUDGMENT IS PROCEDURALLY

PROPER.

This Motion its brought pursuant to Rule 56 of the

Federal Rules of Civil Procedure on the grounds that

there are no genuine iss-1es as to any material facts,

and that as a matter of law there is no potential for

liability as to individual capacity claims pursuant to

the applicable doctrine of qualified immunity. Accord-

ingly, Defendant FILARSKY is entitled to summary

judgment.

Summary Judgment is appropriate when a party

is unable to show a genuine, triable issue of material

fact on which the party will bear the burden of proof

at trial, so long as judgment against that party is

appropriate as a matter of law. (Celotex Corp. uv.

Catrett (1986) 477 U.S. 317, 322; Department of

Commerce v. U.S. House of Representatives (1999) 525

U.S. 316, 327. Material facts are those necessary to

the proof or defense of a claim, and are determined by

reference to the substantive law. (See Anderson v.

App. 68

Liberty Lobby (1986) 477 U.S. 242, 248. Summary

judgment should be entered, after adequate time for

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the exist-

ence of an element essential to that party’s case, and

on which that party will bear the burden of proof at

trial. “(A] complete failure of proof concerning an

essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.”

(Celotex, 477 U.S. at 322-23.) Moreover, “[a] summary

judgment motion cannot be defeated by relying solely

on conclusory allegations unsupported by factual

data.” (Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

1989).

There is question of law for the court to deter-

mine as to whether the “outside counsel” status of

Defendant FILARSKY makes him eligible for the

application of the doctrine of qualified immunity.

In Saucter v. Katz (2001) 533 U.S. 194, 201, the

Supreme Court set out a two step inquiry in deter-

mining whether an official has qualified immunity.

First, taken in the light most favorable to the party

asserting the injury, do the facts show the officers

conduct violated a Constitutional right? Ud.) Second,

the court must ask whether the right was clearly

established. Ud.) The relevant, dispositive inquiry in

determining whether a right is clearly established is

whether it would be clear to a reasonable [actor] his

conduct was unlawful in the situation he confronted.

(Id.; see also Phillips v. Hust (9th Cir. 2007) 477 F.3d

1070, 1079. In the Ninth Circuit, this two-part test

App. 69

determines the scope of qualified immunity for gov-

ernmental officials. (Phillips v. Hust (9th Cir. 2007)

477 F.3d 1070, 1079.) First, the court must determine

whether the law governing the officials’ conduct was

clearly established at the time the officials acted. If

the law was clearly established, the official is entitled

to immunity from suit. (See, Somers v. Thurman (9th

Cir. 1997) 109 F.3d 614, 616-17, cert. denied, 510 U.S.

893 (1997); Act UP!/Portland v. Bailey (9th Cir. 1993)

988 F.2d 868, 871.) If the law was not clearly estab-

lished, the court must determine whether reasonable

officials would have believed that their actions were

lawful. If the court so finds, the officials

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.