Last September, the U.S. Court of Appeals for the 9th Circuit ruled that a California city and all of its employees involved in an unconstitutional search were entitled to qualified immunity, all that is but one — the private attorney hired to conduct the investigation leading to the search.
The attorney, Steve Filarsky of Filarsky & Watts in Ojai, Calif., is asking the Supreme Court to review that ruling and to decide whether qualified immunity extends to the hundreds, if not thousands, of private attorneys hired by local governments to provide specific services.
“Going forward, you’d be crazy to do what my client does,” said Filarsky’s counsel, Jon Tisdale, a partner at Los Angeles’ Gilbert, Kelly, Crowley & Jennett. “Municipalities either are not going to find lawyers willing to do this or they’re going to be so expensive to self-insure and will require a municipality to indemnify them and hold them harmless if sued.
“In economic times like these, with municipalities struggling and where the practice of law is an essential component of your fiscal well being, I think the issue is significant.”
The League of California Cities and the California State Association of Counties agree with Tisdale. Kent Bullard of Los Angeles’ Greines, Martin, Stein & Richland has filed an amicus brief on their behalf urging the justices to take the case.
“The availability of qualified immunity for private attorneys hired by cities is vitally important to municipalities, like the City of Rialto in this case, to other local government units, and even to the federal government agencies, which all commonly engage private attorneys in various capacities in an effort to obtain the most effective legal services and representation possible for the public in a fiscally responsible manner,” writes Bullard.
The case, Filarsky v. Delia, dates back to 2006, when Filarsky, whose firm specializes in representing public-sector employers, was hired by Rialto to provide labor and employment advice, including conducting internal affairs investigations of city employees. One investigation focused on firefighter Nicholas Delia, who was suspected of using sick time to work on a home remodeling project. The city had obtained a videotape of Delia buying building materials and unloading them at his home on a “sick”day. Delia claimed the materials were not for a remodeling project and were unused at his home.
Delia, upon advice of counsel, refused to show the building materials to his battalion chiefs, which would have ended the investigation, according to Filarsky’s petition. He was then asked to bring a sample of the materials to his front yard to validate his explanation. After he again declined, his fire chief converted the request into a written, signed order. Filarsky had no authority to issue such an order. Neither Filarksy nor any of the fire department officials ever threatened Delia with termination or insubordination, the petition states. The two battalion chiefs, Delia’s lawyer and Delia then went to Delia’s home. While the battalion chiefs remained in their car, Delia brought out the sample of unused materials.
Delia subsequently sued the city, the fire department, the fire chief, the battalion chiefs and Filarsky. He claimed they violated his civil rights under the Fourth and 14th Amendments. The district court granted summary judgment to all of the defendants. It specifically found that Filarsky, who had provided legal services to the city for roughly 14 years, was entitled to qualified immunity and that Delia had not demonstrated a violation of a clearly established constitutional right.
A 9th Circuit panel, however, found a violation of Delia’s rights, but not a violation of a “clearly established right.” Because the latter was not present, the panel extended qualified immunity to the city employees, but reversed the district court’s extension of that immunity to Filarsky. In ruling against Filarsky, the panel relied on a 2003 circuit precedent, Gonzalez v. Spencer, which, it acknowledged, was in conflict with a 2005 decision by the 6th Circuit. A request for en banc review was denied.
“My client was clearly working for the city,” said Tisdale. “He was acting in the shoes of the city attorney when he directed the internal affairs investigation. He wasn’t even present for the search.”
Tisdale argues in his petition that the 9th Circuit failed to apply the factors for qualified immunity laid out by the Supreme Court in Richardson v. McKnight, a case involving guards at a privately managed correctional center.
Tisdale noted that in Richardson, the justices said doctors and lawyers “acting at the behest of the sovereign” historically had immunity while there was no such tradition for private prison guards. A tradition of immunity is a factor in Richardson, he argued.
Delia did not respond to the Filarsky petition, but the justices have requested a response.
“We are of the opinion that by taking away qualified immunity from private lawyers in these positions, you’re basically dictating how municipalities can practice law and handle their legal needs,” said Tisdale. “You’re telling them a city attorney is immune if he engages in this very conduct but the guy they hire isn’t. It’s not fair and not consistent with Supreme Court rulings on qualified immunity.”
Marcia Coyle can be contacted at email@example.com.