Delia v. City of Rialto ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS B. DELIA, 
Plaintiff-Appellant,
v. No. 09-55514
CITY OF RIALTO, a Public Entity; D.C. No.
CITY OF RIALTO FIRE DEPARTMENT, 2:08-cv-03359-
a Public Agency; STEPHEN C. R-PLA
WELLS, Individually and as the ORDER
Fire Chief for the City of Rialto;
MIKE PEEL, Individually and as  AMENDING
OPINION AND
Battalion Chief for the City of DENYING
Rialto; FRANK BEKKER, PETITION FOR
Individually and as Battalion Chief REHEARING EN
for the City of Rialto; STEVE A. BANC AND
FILARSKY, Individually and as an AMENDED
Internal Affairs Investigator for OPINION
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
18341
18342 DELIA v. CITY OF RIALTO
Before: Alfred T. Goodwin, Johnnie B. Rawlinson,
Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Bennett
*The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
DELIA v. CITY OF RIALTO 18345
COUNSEL
Michael A. McGill and Carolina V. Diaz of Lackie, Dam-
meier & McGill, Upland, California, for appellant Nicholas B.
Delia.
Howard B. Golds and Cynthia M. Germano of Best Best &
Kreiger, L.L.P., Riverside, California, for appellees City of
Rialto, City of Rialto Fire Department, Stephen C. Wells,
Mike Peel and Frank Bekker.
Jon H. Tisdale and Jennifer Calderon of Gilbert, Kelly, Crow-
ley & Jennett, Los Angeles, California, for appellee Steve A.
Filarsky.
18346 DELIA v. CITY OF RIALTO
ORDER
The opinion filed September 9, 2010, is amended as fol-
lows:
Slip Opinion page 13785, first full paragraph, lines 7-8 —
replace “knew they could not directly do without clearly vio-
lating the Fourth Amendment” with “declined to do directly.”
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 Rehear-
ing En Banc, and no judge of the court has requested a vote.
Appellee Steve A. Filarsky’s Petition for Rehearing En
Banc filed on October 8, 2010, is DENIED.
Future petitions for rehearing and rehearing en banc will
not be entertained.
OPINION
BENNETT, District Judge:
Appellant Nicholas B. Delia (“Delia”), a firefighter,
brought this 42 U.S.C. § 1983 action against the City of
Rialto, the Rialto Fire Department, Rialto Fire Chief Stephen
C. Wells, two Rialto Fire Department Battalion Chiefs, Mike
Peel and Frank Bekker, and a private attorney, Steve Filarsky.
Delia alleges violations of his constitutional rights arising dur-
ing a departmental internal affairs investigation. While being
represented by counsel and interrogated at headquarters, he
was ordered to go directly to his home while being followed
by Battalion Chiefs Peel and Bekker in a City vehicle. He was
DELIA v. CITY OF RIALTO 18347
ordered that when he arrived at his home he was to enter his
home while in full view of the Battalion Chiefs, retrieve sev-
eral rolls of recently purchased insulation, and bring them out
of the house and place them in his front yard for inspection
by the Battalion Chiefs. Delia was told earlier in the interview
that if he failed to do this he could be found to be “insubordi-
nate” and subject to disciplinary action including termination.
This order was given a few minutes after Delia and his coun-
sel refused to consent to a warrantless search of his home by
Battalion Chief Peel.1
The district court granted summary judgment in favor of all
defendants. In a written order, the district court held that all
of the individual defendants were entitled to qualified immu-
nity. The district court also found that the City of Rialto (“the
City”) could not be held liable under Monell v. Department of
Social Services, 436 U.S. 658 (1978). This was because Delia
failed to show that a municipal policy caused his injury. This
timely appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1291.
For the reasons discussed below, we conclude that Delia’s
constitutional right under the Fourth Amendment of the
United States Constitution to be protected from a warrantless
unreasonable compelled search of his home was violated.
However, because we also conclude that this right, under
these or similar facts, was not clearly established at the time
of this constitutional violation, we affirm the district court’s
order granting qualified immunity to Stephen Wells (“Chief
Wells”), Mike Peel (“Peel”), and Frank Bekker (“Bekker”).
We also affirm the district court’s grant of summary judgment
1
Delia asserts in his complaint that defendants’ actions violated his right
to be free from unreasonable search and seizures under the Fourth and
Fourteenth Amendments. He also asserts that defendants violated his right
to be free from invasions of privacy under the First, Fifth and Fourteenth
Amendments. In this appeal, however, he claims only violations of his
Fourth and Fourteenth Amendment rights.
18348 DELIA v. CITY OF RIALTO
to the City on Delia’s Monell claim, but reverse the district
court’s grant of qualified immunity to Steve Filarsky
(“Filarsky”) and remand for further proceedings.
I. BACKGROUND
A. Work Incident And Its Aftermath
In July 2000, Delia was hired by the City’s Fire Depart-
ment as a firefighter. He was later promoted to the rank of
engineer. As a result of a disciplinary decision against him, he
was demoted back to firefighter in June 2006. On August 10,
2006, Delia began to feel ill while working to control a toxic
spill. He was then transported to a hospital emergency room
for evaluation. There, a doctor gave him an off-duty work
order for three work shifts. The doctor, however, did not place
any activity restrictions on Delia.
On August 15, 2006, Delia returned to the hospital. The
doctor again issued him an off-duty work order. This time it
was for eight shifts. The doctor also scheduled a medical test
for him. Again, the doctor did not place any activity restric-
tions on Delia. On August 22, 2006, Delia returned to the hos-
pital and the doctor gave him an off-duty work order for eight
shifts. Once again, no activity restrictions were placed on
Delia. Shortly after this examination, Delia underwent a
colonoscopy and endoscopy. He was diagnosed with esopha-
gitis, an ulceration of the esophagus. On August 29, 2006,
Delia’s doctor issued an off-duty work order for the period of
August 29, 2006, through September 3, 2006. The doctor
cleared him to return to work after September 3, 2006.
The City was suspicious of Delia’s off-work status due to
his disciplinary history. The record reveals that Delia was pre-
viously disciplined for sending improper e-mails. Why this
would make the City suspicious of Delia’s off-work activities
is not readily apparent. In any event, the City hired a private
investigation firm to conduct surveillance on Delia. During
DELIA v. CITY OF RIALTO 18349
this surveillance, Delia was filmed buying building supplies,
including several rolls of fiberglass building insulation, at a
home improvement store. Based on these observations, the
City began a formal internal affairs investigation of Delia to
determine whether he was off-work on false pretenses. The
City began its internal affairs investigation of Delia despite
the fact that Delia had no activity restrictions placed on him
by his treating physician and the City possessed no contrary
evidence.
As part of the internal affairs investigation, Delia was
ordered to appear, on September 18, 2006, for an administra-
tive investigation interview. The interview was conducted by
Filarsky, a private attorney retained by the City. Filarsky had
previously represented the City in conducting interviews dur-
ing internal affairs investigations.
B. The Internal Affairs Interview
Filarsky’s interview of Delia was conducted on September
18, 2006. In addition to Filarsky and Delia, Delia’s attorney,
Stuart Adams, Peel and Bekker were also present at the inter-
view. At the onset of the interview, Filarsky warned Delia that
he was obligated to fully cooperate. Delia was further cau-
tioned that “[i]f at any time it is deemed you are not cooperat-
ing then you can be held to be insubordinate and subject to
disciplinary action, up to and including termination.”
After some preliminary questions, Filarsky asked Delia
about any home construction projects he was currently under-
taking in his home. Delia answered that he had some duct
work done in his home and had purchased some rolls of insu-
lation. He told Filarsky that the rolls were currently sitting in
his house. Filarsky showed Delia a videotape of him purchas-
ing home construction materials, including the rolls of insula-
tion, at a store. Filarsky asked Delia whether this insulation
had been installed. Delia told Filarsky that it was still bagged
at his house. Shortly after this line of questioning, Filarsky
18350 DELIA v. CITY OF RIALTO
requested Delia and Adams step out of the interview room so
he could confer with “the Chiefs.” During this break, Filarsky
consulted with Chief Wells concerning his desire to order
Delia to produce the rolls of insulation for inspection. Chief
Wells, who was never present during the interview with
Delia, agreed to permit Filarsky to order Delia to produce the
rolls of insulation.
Following the break, Filarsky asked Delia to allow Peel to
follow him to his house and, once there, permit Peel to enter
his home to conduct a warrantless search of the insulation
there. On the advice of counsel, Delia refused Filarsky’s
request. Unable to get Delia to consent to a warrantless search
of his house by Peel, Filarsky then asked if Delia would vol-
unteer to have Peel follow him to his house, where Delia
would bring out the rolls of insulation to show Peel that they
had not been installed. Again, on the advice of his counsel,
Delia refused Filarsky’s request.
Unable to get Delia to volunteer, Filarsky orally ordered
Delia to produce the rolls of insulation from his house.
Adams, Delia’s attorney, questioned Filarsky’s legal authority
for issuing such an order and requested that the order be in
writing. Following a lengthy break, Delia was presented with
a written order to produce the insulation for inspection signed
by Chief Wells. The interview then concluded.
C. The Search And Resulting Lawsuit
Immediately after the interview, Peel and Bekker followed
Delia, in a city vehicle, to Delia’s house. Once there, Peel and
Bekker parked alongside the curb in front of Delia’s house,
and waited a few minutes for Adams to arrive. Peel and Bek-
ker never left their vehicle. After Adams arrived, he, Delia,
and a union representative went into Delia’s house and
brought out three or four rolls of insulation and placed them
on his lawn. After Delia brought out the last roll of insulation,
Peel thanked him for showing them the insulation and the two
DELIA v. CITY OF RIALTO 18351
drove off. On May 21, 2008, Delia filed this lawsuit. Defen-
dants subsequently moved for summary judgment. At the
hearing on defendants’ motions for summary judgment, the
district court orally granted defendants’ motions. The court
found that Delia had not established municipal liability
against the City. The court concluded that Delia had failed to
show that he was injured by an express policy, a longstanding
custom, or an official with final policymaking authority. The
district court also found that the individual defendants, Chief
Wells, Peel, and Bekker were entitled to qualified immunity.
However, with respect to Filarsky, the court stated:
As to Defendant Filarsky, the evidence establishes
that Filarsky’s conduct did not result in the depriva-
tion of any constitutional right required — as a
required element for a 1983 claim. Filarsky’s con-
duct consisted of conducting the interview, arguing
with Delia’s attorney, and consulting with Fire Chief
Wells, who then issued the written order. Filarsky
was not present at Delia’s house, and at no point was
Delia threatened with subordination [sic] or termina-
tion if he refused to comply with the order.
The district court’s written order granting defendants’
motions for summary judgment does not contain this holding.
The district court directed defense counsel to prepare find-
ings of fact and conclusions of law. It appears from the record
that the district court mechanically adopted the findings of
fact and conclusions of law as prepared by defense counsel.2
2
This court has previously noted its disapproval of this practice. Federal
Trade Comm’n v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1215 (9th
Cir. 2004); Unt v. Aerospace Corp., 765 F.2d 1440, 1444 (9th Cir. 1985);
Lumbermen’s Underwriting Alliance v. Can-Car, Inc., 645 F.2d 17, 18-19
(9th Cir. 1980); Industrial Bldg. Materials, Inc. v. Interchemical Corp.,
437 F.2d 1336, 1339 (9th Cir. 1970). As this court recognized forty years
ago in Interchemical Corp.: “This practice has been condemned because
18352 DELIA v. CITY OF RIALTO
In its written order, the district court concluded that Filarsky,
as well as Peel, Bekker and Chief Wells, was entitled to quali-
fied immunity. No explanation for this change in the district
court’s reasoning appears in its written order.3 The district
of the possibility that such findings and conclusions, prepared by the non-
objective advocate, may not fully and accurately reflect the thoughts enter-
tained by the impartial judge at the time of his initial decision.” Inter-
chemical Corp., 437 F.2d at 1339; see also United States v. El Paso
Natural Gas Co., 376 U.S. 651, 657 n.4 (1964) (quoting Judge J. Skelly
Wright’s admonition, in his Seminars for Newly Appointed United States
District Judges 166 (1963), that: “ ‘lawyers, and properly so, in their zeal
and advocacy and their enthusiasm are going to state the case for their side
in these findings as strongly as they possibly can. When these findings get
to the courts of appeals they won’t be worth the paper they are written on
as far as assisting the court of appeals in determining why the judge
decided the case.’ ”); Nissho-Iwai Co. v. Star Bulk Shipping Co., 503 F.2d
596, 598 (9th Cir. 1974) (“We are aware that busy judges sometimes
request attorneys to prepare the first draft of proposed findings and con-
clusions. The vice is when the district judge fails to study them and make
such changes as are necessary to be sure they reflect his opinion.”).
3
The dangers of mechanically adopting counsel prepared summary
judgment orders appear to be exemplified in this case. The district court’s
oral reasons for granting summary judgment do not match its written
order. Yet, no explanation for this change appears in the record. Because
the district court’s written order postdates its oral statement, we will pro-
ceed on the presumption that the district court abandoned its prior oral rea-
soning for granting summary judgment. We will, instead, rely exclusively
on the district court’s written order. See White v. Washington Public
Power Supply Sys., 692 F.2d 1286, 1289 n.1 (9th Cir. 1982) (noting that
“the rule in this circuit is that the formal findings of fact and conclusions
of law supersede the oral decision.”); see also O’Neill v. AGWI Lines, 74
F.3d 93, 95 (5th Cir. 1996) (noting that “to the extent that the district
court’s statements from the bench conflict with its formal findings and
conclusions of law, we need not consider them.”); Snow Machines, Inc. v.
Hedco, Inc., 838 F.2d 718, 727 (3d Cir. 1988) (noting that “a formal order
controls over a prior oral statement.”); E.E.O.C. v. Exxon Shipping Co.,
745 F.2d 967, 974 (5th Cir. 1984) (observing that “to the extent the [trial]
court’s statements from the bench conflict with its formal findings and
conclusions, we do not consider them.”); Harbor Tug & Barge v. Belcher
Towing, 733 F.2d 823, 827 n.3 (11th Cir. 1984) (“The trial judge was not
bound by his off-hand remarks. In its search for error, the reviewing court
looks to the formal findings and conclusions . . .”).
DELIA v. CITY OF RIALTO 18353
court also held that the City was entitled to summary judg-
ment on Delia’s Monell claim. The district court, again, found
that Delia had not established that he was injured by an
express policy, a longstanding custom, or an official with
final policymaking authority.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. Long Beach Area Chamber of Commerce v. City of
Long Beach, 603 F.3d 684, 689 (9th Cir. 2010). We must
determine whether, viewing the evidence in the light most
favorable to Delia, as the nonmoving party, “there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” California
Alliance of Child and Family Servs. v. Allenby, 589 F.3d
1017, 1020 (9th Cir. 2009).
III. DISCUSSION
A. Qualified Immunity—The City’s Employees
[1] “The doctrine of qualified immunity protects govern-
ment officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
Pearson, the United States Supreme Court offered this expla-
nation of the reasoning behind the concept of qualified immu-
nity: “Qualified immunity balances two important interests—
the need to hold public officials accountable when they exer-
cise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Id. In fact, “[t]he protection of qualified
immunity applies regardless of whether the government offi-
cial’s error is ‘a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.’ ” Pearson, 129 S.
18354 DELIA v. CITY OF RIALTO
Ct. at 815 (quoting Groh v. Ramirez, 540 U.S. 551, 567
(2004) (Kennedy, J., dissenting).
In considering a claim for qualified immunity, the court
engages in a two-part inquiry: whether the facts shown “make
out a violation of a constitutional right,” and “whether the
right at issue was ‘clearly established’ at the time of defen-
dant’s alleged misconduct.” Pearson, 129 S. Ct. at 815-16. In
Pearson, the Court overruled its prior holding, in Saucier v.
Katz, 533 U.S. 194 (2001), that courts had to proceed through
the two-step inquiry sequentially. Pearson, 129 S. Ct. at 818;
see James v. Rowland, 606 F.3d 646, 651 (9th Cir. 2010) (rec-
ognizing that Pearson overruled Saucier in part). As the Court
explained, “while the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as mandatory.
The judges of the district courts and the courts of appeals
should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson, 129 S. Ct. at 818.
Thus, following Pearson, it is within our discretion to decide
which step to address first. Brooks v. Seattle, 599 F.3d 1018,
1022 n.7 (9th Cir. 2010); Bull v. City & County of San Fran-
cisco, 595 F.3d 964, 971 (9th Cir. 2010) (en banc). Thus, the
threshhold question we will decide is whether Delia being
ordered to bring the rolls of insulation out of his home for
inspection “make[s] out a violation of a constitutional right.”
Pearson, 129 S. Ct. at 816; see Saucier, 533 U.S. at 201.
1. Fourth Amendment violation
Delia contends that Chief Wells, Peel, and Bekker violated
his Fourth Amendment right to be free from unreasonable
searches and seizures when he was ordered to retrieve the
rolls of home insulation and show them to fire department
personnel. We agree. The Fourth Amendment, made applica-
ble to the states through the Fourteenth Amendment, Mapp v.
Ohio, 367 U.S. 643, 655 (1961), guarantees, “[t]he right of the
DELIA v. CITY OF RIALTO 18355
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.” U.S. CONST. amend. IV. The Supreme Court has
held that the Fourth Amendment applies to “[s]earches and
seizures by government employers or supervisors of the pri-
vate property of their employees.” O’Connor v. Ortega, 480
U.S. 709, 715 (1987).
[2] In Payton v. New York, 445 U.S. 573 (1980), the
Supreme Court explained that no zone of privacy is more
clearly defined than one’s home: “[T]he Fourth Amendment
has drawn a firm line at the entrance to the house. Absent exi-
gent circumstances, that threshold may not reasonably be
crossed without a warrant.” Id. at 590; see Kyllo v. United
States, 533 U.S. 27, 28 (2001) (observing that “search of a
home’s interior” is “the prototypical . . . area of protected
activity . . .”); Silverman v. United States, 365 U.S. 505, 511
(1961) (observing that “[a]t the very core” of the Fourth
Amendment “stands the right of a man to retreat into his own
home and there be free from unreasonable governmental
intrusion.”); see also United States v. Struckman, 603 F.3d
731, 738 (9th Cir. 2010) (recognizing the core of the Fourth
Amendment is protection against unreasonable searches of
one’s home); United States v. Brock, 667 F.2d 1311, 1326
(9th Cir. 1982) (noting that “[o]ne of the foundations of the
fourth amendment is the right of the people ‘to be secure in
their . . . houses.’ ”); cf. New York v. Harris, 495 U.S. 14, 17
(1990) (“[T]he rule in Payton was designed to protect the
physical integrity of the home[.]”). Therefore, the warrantless
search of a home is presumptively unreasonable unless the
government can prove consent or that the search falls within
one of the carefully defined sets of exceptions. See Arizona v.
Hicks, 480 U.S. 321, 327 (1987); Coolidge v. New Hamp-
shire, 403 U.S. 443, 474-75 (1971). The circumstances which
excuse the failure to obtain a warrant are “ ‘few in number
18356 DELIA v. CITY OF RIALTO
and carefully delineated,’ ” where one’s home is concerned.4
4
We note that the Supreme Court recently reemphasized that the “ ‘spe-
cial needs’ ” of the workplace” constitute an exception to the general rule
that warrantless searches “ ‘are per se unreasonable under the Fourth
Amendment’. . .” Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010) (citation
and internal quotations omitted). In Quon, the Court reviewed a disagree-
ment in O’Connor v. Ortega, 480 U.S. 709 (1987), on the proper analyti-
cal framework for Fourth Amendment claims against government
employers. Quon, 130 S. Ct. at 2628. Under one approach, representing
the plurality opinion in O’Connor, the Court explained the plurality analy-
sis has two steps:
First, because “some government offices may be so open to fel-
low employees or the public that no expectation of privacy is rea-
sonable,” id., at 718, a court must consider “[t]he operational
realities of the workplace” in order to determine whether an
employee’s Fourth Amendment rights are implicated, id., at 717
. . . Next, where an employee has a legitimate privacy expecta-
tion, an employer’s intrusion on that expectation “for noninvesti-
gatory, work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances.”
Id. (quoting O’Connor, 480 U.S. at 717, 718, and 725-726). The compet-
ing approach, championed by Justice Scalia in his concurrence in
O’Connor, “dispensed with an inquiry into ‘operational realities’ and
would conclude ‘that the offices of government employees . . . are covered
by Fourth Amendment protections as a general matter.’ ” Id. (quoting
O’Connor, 480 U.S. at 731). Thus, under Justice Scalia’s approach, the
core inquiry is whether the search would be “regarded as reasonable and
normal in the private-employer context.” O’Connor, 480 U.S. at 732. If
so, the search does not violate the Fourth Amendment. Id. The Court did
not resolve this schism in Quon. Quon, 130 S. Ct. at 2628. The Quon-
O’Connor workplace warrant exception, however, has no application here.
Although the search at issue in this case arose as a result of a workplace
investigation, defendants were not seeking to search Delia’s workplace
environment, but his home. See Quon, 130 S. Ct. at 2633 (concerning
search of messages made by police officer on government owned alphanu-
meric pager); O’Connor, 480 U.S. at 712-13 (concerning search of physi-
cian’s state office and seizure of personal items from his desk and filing
cabinet). Moreover, even if the Quon-O’Connor workplace warrant excep-
tion was applicable to the search here, the search was unreasonable under
either the O’Connor plurality or Justice Scalia’s approach. Under the
DELIA v. CITY OF RIALTO 18357
See Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (quoting
United States v. United States District Court, 407 U.S. 297,
318 (1972)).
In this case, defendants initially attempted to conduct a
warrantless search of Delia’s house for the insulation by ask-
ing for Delia’s consent. Presumably, this is because a search
conducted with the home owner’s voluntary consent is an
exception to the Fourth Amendment’s proscription on war-
rantless searches. Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973); United States v. Rubio, 727 F.2d 786, 796 (9th
Cir. 1983). Filarsky asked Delia to consent to allowing Peel
to search for the insulation. Delia, however, refused to con-
sent. Unable to obtain Delia’s consent to a warrantless search
of his house by Peel, Filarsky tried a different tactic. He
sought to obtain Delia’s consent to Delia bringing the rolls of
insulation out of his home to show Peel that they had not yet
been installed. No doubt this was done because an individual
does not have an expectation of privacy in items exposed to
the public, thereby eliminating the need for a search warrant.
See Katz v. United States, 389 U.S. 347, 351 (1967) (“[T]he
Fourth Amendment protects people, not places. What a person
knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection.”);
see also United States v. Broadhurst, 805 F.2d 849, 856 (9th
O’Connor plurality approach, the search here was unjustified from the
start because there were no reasonable grounds for believing that a search
for the insulation was necessary for the investigation. Delia was being
investigated for abuse of sick leave. However, no activity restrictions were
ever placed on Delia by his treating physician as a result of his work-place
exposure to the hazardous substances. Consequently, whether or not he
installed insulation in his home was irrelevant to the investigation, since
he could install insulation in his home and still be in full compliance with
his physician’s orders. For these same reasons, we also conclude that the
search would fail to satisfy Justice Scalia’s approach because it would not
be “regarded as reasonable and normal in the private-employer context.”
O’Connor, 480 U.S. at 732.
18358 DELIA v. CITY OF RIALTO
Cir. 1986) (“What a person knowingly exposes to public view
is not protected by the Fourth Amendment”). Delia, however,
again rejected Filarsky’s request.
[3] Unable to obtain Delia’s consent to search his home,
and alternatively, failing to persuade Delia to voluntarily
retrieve the insulation from his home and place it in public
view on his front lawn, Filarsky was stymied. It was only at
this juncture that Filarsky’s final move was to hatch a plan to
compel Delia to do indirectly what Filarsky and the City of
Rialto officials 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 investigation could result
in charges of insubordination and possible termination of his
employment. As a result, Chief Wells’s order “convey[ed] a
message that compliance with [his] request[ ] [was] required.”
Florida v. Bostick, 501 U.S. 429, 435 (1991). As this court
has recognized in the situation where police demand entrance
to a dwelling, “compliance with a [governmental] demand is
not consent.” United States v. Winsor, 846 F.2d 1569, 1573
n.3 (9th Cir. 1988) (en banc) (internal quotations omitted). In
Winsor, police officers decided to enter a hotel and go from
room to room looking for a robbery suspect. Id. at 1571.
“When the police knocked on the door [of the defendants’
room] and demanded that it be opened,” one of the defendants
obeyed, at which point, the police officers recognized the sus-
pect as the robber and found evidence of the robbery in plain
view. Id. This court found that the defendant had opened the
door in response to a claim of lawful authority, not voluntar-
ily. Id. at 1573. Consequently, this court held that “the police
did effect a ‘search’ when they gained visual entry into the
room through the door that was opened at their command.” Id.Similarly, under the facts in this case, Delia was compelled to
enter his own home and retrieve the insulation for public view
by order of Chief Wells. Delia’s actions were involuntary and
coerced by the direct threat of sanctions including loss of his
DELIA v. CITY OF RIALTO 18359
firefighter position.5 Therefore, we hold that the warrantless
compelled search of Delia’s own home, requiring him to
retrieve and display the insulation in public view on his front
yard, violated Delia’s right under the Fourth Amendment to
be free from an unreasonable search of his home by his
employer.
2. Clearly established right
Having found that Delia’s Fourth Amendment rights were
violated, we turn to the second prong of the qualified immu-
nity inquiry, whether the right was clearly established at the
time of the defendants’ misconduct. Accordingly, we must
focus on what the defendants’ knew, or should have known,
concerning Delia’s Fourth Amendment constitutional rights as
of September 18, 2006, the date of Chief Wells’s order.
Whether a right is clearly established “turns on the ‘objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken.’ ” Pearson, 129 S. Ct. at 822 (quoting Wilson v. Layne,
526 U.S. 603, 614 (1999)); see Clouthier v. County of Contra
Costa, 591 F.3d 1232, 1241 (9th Cir. 2010); Greene v. Cam-
reta, 588 F.3d 1011, 1031 (9th Cir. 2009). Delia bears the
burden of demonstrating that the right allegedly violated was
clearly established at the time of the incident. See Greene, 588
F.3d at 1031; Robinson v. York, 566 F.3d 817, 825 (9th Cir.
2009), cert. denied, 130 S. Ct. 1047 (2010); Galen v. County
of Los Angeles, 477 F.3d 652, 665 (9th Cir. 2007). The “con-
tours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
5
It is well established that public employers generally cannot condition
employment on an employee’s waiver of constitutional rights. See O’Hare
Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996); Pickering
v. Board of Educ., 391 U.S. 563, 568 (1968); Vance v. Barrett, 345 F.3d
1083, 1092 (9th Cir. 2003); see also McDonell v. Hunter, 809 F.2d 1302,
1310 (8th Cir. 1987) (holding that the state may not require, as a condition
of employment, waiver of the Fourth Amendment right to be free from
unreasonable searches).
18360 DELIA v. CITY OF RIALTO
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see
James, 606 F.3d at 652.
[4] This case does not fit neatly into any previous category
of Fourth Amendment law. This is best demonstrated by the
fact that no party provided any prior case law analogous to
this situation. Moreover, until today, this court had not
extended Winsor beyond situations where police demand
entrance. In attempting to demonstrate that the right allegedly
violated was clearly established at the time of Chief Wells’s
order, Delia cites several cases. These cases include this
court’s prior decision in Los Angeles Police Protective
League v. Gates, 907 F.2d 879 (9th Cir. 1990), as well as the
Supreme Court’s decisions in Uniformed Sanitation Men
Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280(1968) and Gardner v. Broderick, 392 U.S. 273 (1968). A
review of these decisions, however, does not demonstrate that
Chief Wells’s order violated a clearly established right.
Both Supreme Court decisions concern municipal employ-
ees who were questioned about corruption in their agencies.
In Gardner, the plaintiff, a police officer, was subpoenaed to
appear before a New York County grand jury that was investi-
gating bribery and corruption of police officers in connection
with gambling operations. Gardner, 392 U.S. at 274.
Although he was informed of his privilege against self-
incrimination, the police officer was told that he would be
fired if he did not sign a waiver of immunity. Id. After he
refused to sign the waiver, he was fired. Id. at 274-75. The
Court held that the plaintiff was discharged “not for failure to
answer relevant questions about his official duties, but for
refusal to waive a constitutional right. . . . He was dismissed
solely for his refusal to waive the immunity to which he is
entitled if he is required to testify despite his constitutional
privilege.” Id. at 278.
[5] The Court reached an identical conclusion in Uni-
formed Sanitation Men, decided the same day as Gardner. In
DELIA v. CITY OF RIALTO 18361
Uniformed Sanitation Men, fifteen sanitation workers were
summoned to appear at a hearing conducted by a commis-
sioner of investigations. The commissioner was investigating
charges that sanitation department employees were not charg-
ing certain fees and were keeping other fees for themselves.
Uniformed Sanitation Men Ass’n, Inc., 392 U.S. at 281. Each
sanitation employee was told that if he refused to testify “his
employment and eligibility for other city employment would
terminate.” Uniformed Sanitation Men Ass’n, Inc. 392 U.S. at
282. Twelve workers refused to answer, invoking their privi-
lege against self-incrimination, and were discharged. Id. The
remaining three workers answered questions at the hearing.
They were subsequently suspended as a result of “information
received from the Commissioner of Investigation concerning
irregularities arising out of (their) employment in the Depart-
ment of Sanitation.” Id. The three workers were later sum-
moned before a grand jury and asked to sign waivers of
immunity. Id. They refused and were fired solely for refusing
to sign waivers of immunity. Id. at 282-83. The Supreme
Court held all the discharges unconstitutional, noting that,
“[the sanitation workers] were not discharged merely for
refusal to account for their conduct as employees of the city.
They were dismissed for invoking and refusing to waive their
constitutional right against self-incrimination.” Id. at 283.
Thus, in both Gardner and Uniformed Sanitation Men, the
Court held that public agencies may not impair an individu-
al’s privilege against self-incrimination by compelling incrim-
inating answers, or by requiring a waiver of immunity. See
id.; Gardner, 392 U.S. at 278. Neither case involved the legal-
ity of a search under the Fourth Amendment. Accordingly,
neither Gardner nor Uniformed Sanitation Men would have
put defendants on notice that Chief Wells’s order to Delia,
with no attendant threat to his employment, constituted a vio-
lation of the Fourth Amendment.
[6] Delia also cites this court’s decision in Gates. In Gates,
a police officer was served with an administrative warrant to
search his garage. Gates, 907 F.2d at 883. When the plaintiff
18362 DELIA v. CITY OF RIALTO
refused to permit the search, he was fired for insubordination.
Id. Relying on the Supreme Court’s decisions in Gardner and
Uniformed Sanitation Men, this court held that the plaintiff
“could not be disciplined when he refused to allow the appel-
lants to violate his constitutional rights. As the Supreme Court
has pointed out, it is not proper to discharge an officer from
duty in order to punish that officer for exercising rights guar-
anteed to him under the constitution.” Id. at 886. Thus, the
Gates decision did not concern the legality of an actual
search, let alone a “search” under circumstances similar to
this case. As a result, the Gates decision, like the Supreme
Court’s decisions in Gardner and Uniformed Sanitation Men,
would hardly have put defendants on notice that their conduct
here violated the Fourth Amendment. Thus, Delia has not
demonstrated that a constitutional right was clearly estab-
lished as of the date of Chief Wells’s order, such that defen-
dants would have known that their actions were unlawful.
Accordingly, we affirm the district court’s grant of summary
judgment in favor of Chief Wells, Peel, and Bekker on the
ground of qualified immunity.
B. Qualified Immunity—Filarsky
[7] We next take up the issue of whether Filarsky, too, is
entitled to qualified immunity. Unlike the other individual
defendants in this case, Filarsky is not an employee of the
City. Instead, he is a private attorney, who was retained by the
City to participate in internal affairs investigations. Delia con-
tends that Filarsky, as a private attorney, is not entitled to
qualified immunity. Filarsky, on the other hand, argues that
this is a distinction without a difference. He urges this court
to follow the Sixth Circuit Court of Appeals’s decision in Cul-
linan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997), and
hold that he is entitled to qualified immunity. In Cullinan, the
Sixth Circuit held that a law firm that had been hired by the
City of Louisville to serve as outside counsel was entitled to
qualified immunity against plaintiffs’ § 1983 claims. Id. The
court succinctly concluded: “We see no good reason to hold
DELIA v. CITY OF RIALTO 18363
the city’s in-house counsel eligible for qualified immunity and
not the city’s outside counsel.” Id. In arriving at this conclu-
sion, the court of appeals relied exclusively on dictum in
Richardson v. McKnight, 521 U.S. 399, 407 (1997), that “the
common law ‘did provide a kind of immunity for certain pri-
vate defendants, such as doctors or lawyers who performed
services at the behest of the sovereign.’ ” Cullinan, 128 F.3d
at 310.
[8] The hitch in Delia’s argument is that we are not free to
follow the Cullinan decision. We are “bound by prior panel
opinions ‘unless an en banc decision, Supreme Court decision
or subsequent legislation undermines those decisions.’ ” In re
Findley, 593 F.3d 1048, 1050 (9th Cir. 2010) (quoting
Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1441 (9th Cir.
1994); Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir.
2007) (“Ordinarily, panels cannot overrule a circuit precedent;
that power is reserved to the circuit court sitting en banc.”).
In Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), another
panel of this court held that a private attorney representing a
county was not entitled to qualified immunity. Id. at 834-35.
In Gonzalez, the defendant, a private attorney, was retained to
defend Los Angeles County in an underlying civil rights suit
brought by the plaintiff. Id. at 834. The attorney accessed the
plaintiff’s juvenile court file without notifying him and with-
out obtaining authorization from the juvenile court. Id. The
attorney employed information from the file in deposing the
plaintiff. Id. The plaintiff brought suit against the attorney, her
law firm, and the county “for accessing and using his juvenile
court file without authorization.” Id. The plaintiff alleged that
this conduct constituted a violation of his Fourth and Four-
teenth Amendment rights. Id. In rejecting the attorney’s claim
of qualified immunity, this court reasoned, “[the attorney] is
not entitled to qualified immunity. She is a private party, not
a government employee, and she has pointed to ‘no special
reasons significantly favoring an extension of governmental
immunity’ to private parties in her position.” Id. at 835 (quot-
ing Richardson, 521 U.S. at 412); see Wyatt v. Cole, 504 U.S.
18364 DELIA v. CITY OF RIALTO
158, 168-69 (1992) (holding that private defendants in § 1983
suit for “invoking a state replevin, garnishment, or attachment
statute” later declared unconstitutional were not entitled to
qualified immunity from suit); cf. Pollard v. The GEO Group,
Inc., 607 F.3d 583, 602 (9th Cir. 2010) (observing that
“[u]nlike officers employed by public prisons,” employees of
a private corporation operating a federal prison would not be
entitled to qualified immunity in Bivens cause of action);
Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (holding
that “the common law did not provide immunity to private
attorneys conspiring with a judge to deprive someone of their
constitutional rights”). Filarsky does not allege any interven-
ing en banc decision, Supreme Court decision, or intervening
legislation which would permit us to overrule the holding in
Gonzalez. Therefore, we are bound by the Gonzalez decision.
Accordingly, Filarsky is not entitled to qualified immunity as
a private attorney and we reverse the district court’s grant of
summary judgment in his favor and remand for trial, or fur-
ther proceedings as determined by the district court.6
C. Municipal Liability
[9] Finally, we consider whether the City may be held lia-
ble under § 1983 for the individual defendants’ actions. The
City may be held liable under § 1983 for its employees’
actions where one of its customs or policies caused a violation
of Delia’s constitutional rights. Monell, 436 U.S. at 690-91.
6
We are skeptical of the district court’s oral holding that Filarsky has
no responsibility for the deprivation of Delia’s Fourth Amendment rights
which occurred in this case. We leave to the district court on remand to
determine Filarsky’s liability consistent with this opinion. We do note that
searches by private parties are subject to the Fourth Amendment if private
parties act as agents of the government. Skinner v. Railway Labor Execu-
tives’ Assn, 489 U.S. 602, 614 (1989); United States v. Young, 153 F.3d
1079, 1080 (9th Cir. 1998). Under § 1983, private parties acting under
color of state law can be held liable for violations of federal constitutional
rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Frank-
lin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002).
DELIA v. CITY OF RIALTO 18365
In Monell, the United States Supreme Court held that munici-
palities are “persons” subject to damages liability under
§ 1983 where it has caused a constitutional tort through “a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Id. at 690.
The Court further observed that § 1983 also authorizes suit
“for constitutional deprivations visited pursuant to govern-
mental ‘custom’ even though such a custom has not received
formal approval through the body’s official decisionmaking
channels.” Id. at 690-691. The Court, however, specifically
rejected the use of the doctrine of respondeat superior to hold
a municipality liable for the unconstitutional acts of its
employees. The Court instructed that municipalities could be
held liable only when an injury was inflicted by a city’s “law-
makers or by those whose edicts or acts may fairly be said to
represent official policy.” Id. at 694. “[T]he touchstone of
‘official policy’ is designed ‘to distinguish acts of the munici-
pality from acts of employees of the municipality, and thereby
make clear that municipal liability is limited to action for
which the municipality is actually responsible.’ ” City of St.
Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (Brennan, J.,
concurring) (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 479-80 (1986)) (emphasis in Pembaur).
Even in the absence of an official policy or a custom, the
Supreme Court has held that “an unconstitutional government
policy could be inferred from a single decision taken by the
highest officials responsible for setting policy in that area of
the government’s business.” Praprotnik, 485 U.S. at 123.
Under this paradigm, however, “[m]unicipal liability attaches
only where the decisionmaker possesses final authority to
establish municipal policy with respect to the action ordered.”
Pembaur, 475 U.S. at 481.
[10] Thus, in order to establish an official policy or custom
sufficient for Monell liability, a plaintiff must show a consti-
tutional right violation resulting from (1) an employee acting
pursuant to an expressly adopted official policy; (2) an
18366 DELIA v. CITY OF RIALTO
employee acting pursuant to a longstanding practice or cus-
tom; or (3) an employee acting as a “final policymaker.”
Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003); see
Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-
85 (9th Cir. 2002); Gillette v. Delmore, 979 F.2d 1342, 1346-
47 (9th Cir. 1992). Delia has not directed us to any policy,
officially adopted and promulgated by the City. Nor has he
established a practice, so permanent and well-settled so as to
constitute a custom, that existed and through which Chief
Wells acted in ordering Delia to produce the rolls of insula-
tion. See Praprotnik, 485 U.S. at 121. Indeed, Delia does not
suggest that defendants were acting pursuant to an express
official policy or a longstanding practice or custom.
[11] This leaves only the third means of establishing
municipal liability available to Delia, that he was injured by
an employee of the City with “final policymaking authority.”
Id. at 123. Delia asserts that the individual defendants, and
Chief Wells in particular, were acting as final policymakers
when ordering him to produce the rolls of insulation. In
response, the City argues that none of the individual defen-
dants had final policymaking authority. “[W]hether a particu-
lar official has ‘final policymaking authority’ is a question of
state law.” Praprotnik, 485 U.S. at 124; see Pembaur, 475
U.S. at 483 (noting that “[a]uthority to make municipal policy
may be granted directly by a legislative enactment or may be
delegated by an official who possesses such authority”); Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)
(“’whether a particular official has ‘final policymaking
authority’ is a question of state law.’ ”) (quoting Praprotnik,
485 U.S. at 123); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.
2004) (“To determine whether a school district employee is a
final policymaker, we look first to state law.”).
[12] Review of the City’s Code of Ordinances reveals that
the Fire Chief has not been delegated final policymaking
authority regarding any practices for the City’s Fire Depart-
ment. Instead, the City Council is vested with exclusive final
DELIA v. CITY OF RIALTO 18367
policymaking authority for the Fire Department. Rialto Ordi-
nance Chapter 2.34 governs the City’s Fire Department. Sec-
tion 2.34.020 provides:
The fire department is a department within the
framework of the city’s administrative organization
and is governed by state and federal laws pertaining
thereto and the ordinances, policies and procedures
established by the city council.
RIALTO, CAL., ORDINANCES § 2.34.020 (emphasis added). Sec-
tion 2.34.030, which concerns the establishment of a Fire
Chief, provides:
There is a chief of the fire department who is sub-
ject to the general supervision of the city administra-
tor and with the approval of the city council, solely
responsible for the management and conduct of the
department.
RIALTO, CAL., ORDINANCES § 2.34.030 (emphasis added).
Finally, § 2.34.040 specifies the duties of the City’s Fire
Chief, providing in pertinent part as follows:
The duties of the fire chief include, but are not
limited to, the following:
A. To formulate and recommend policies and pro-
cedures pertaining to the enforcement of rules
and regulations for the government and opera-
tion of the fire department and pertaining to the
prevention and control of fires; to administer
such policies and procedures when approved
and to conduct such activities for the city;
....
H. To carry out such other affairs and assignments
as he/she is assigned by the city council by res-
18368 DELIA v. CITY OF RIALTO
olution, or to carry out other functions as
described of the fire chief in other provisions of
this code;
I. To be responsible for the general supervision and
administration of the fire safety division.
RIALTO, CAL., ORDINANCES § 2.34.020 (emphasis added).
[13] Thus, under these ordinances, even though Chief
Wells had final authority over the fire department’s day-to-
day supervision and administration, he was not authorized to
establish city policy. In Pembaur, the Supreme Court distin-
guished final policymaking authority from final decisionmak-
ing authority, observing that:
The fact that a particular official-even a policymak-
ing official-has discretion in the exercise of particu-
lar functions does not, without more, give rise to
municipal liability based on an exercise of that dis-
cretion. The official must also be responsible for
establishing final government policy respecting such
activity before the municipality can be held liable.
Pembaur, 475 U.S. at 481-83 (citations and footnote omitted).
To drive home this point, the Court offered the following
illustration:
Thus, for example, the County Sheriff may have dis-
cretion to hire and fire employees without also being
the county official responsible for establishing
county employment policy. If this were the case, the
Sheriff’s decisions respecting employment would
not give rise to municipal liability, although similar
decisions with respect to law enforcement practices,
over which the Sheriff is the official policymaker,
would give rise to municipal liability. Instead, if
county employment policy was set by the Board of
DELIA v. CITY OF RIALTO 18369
County Commissioners, only that body’s decisions
would provide a basis for county liability. This
would be true even if the Board left the Sheriff dis-
cretion to hire and fire employees and the Sheriff
exercised that discretion in an unconstitutional man-
ner; the decision to act unlawfully would not be a
decision of the Board. However, if the Board dele-
gated its power to establish final employment policy
to the Sheriff, the Sheriff’s decisions would represent
county policy and could give rise to municipal liabil-
ity.
Pembaur, 475 U.S. at 483 n.12.
The facts here mirror the Pembaur illustration. Chief Wells
clearly had supervisory and final decisionmaking authority
over the City’s Fire Department. In that capacity, he signed
the order requiring Delia to produce the rolls of insulation.
The record, however, is devoid of any evidence that Chief
Wells’s authority included responsibility for establishing final
departmental policy. To the contrary, the City’s Code of Ordi-
nances places policymaking authority for the fire department
in the exclusive hands of the city council. See RIALTO, CAL.,
ORDINANCES §§ 2.34.020, 2.34.030. Thus, only the city coun-
cil’s decisions would provide a basis for city liability. No
such decisions appear in the record. As the Supreme Court
cautioned in Praprotnik, “a federal court would not be justi-
fied in assuming that municipal policymaking authority lies
somewhere other than where the applicable law purports to
put it.” Praprotnik, 485 U.S. at 128.
Delia directs our attention to the fact that Chief Wells did
not provide the city administrator with a copy of his order to
Delia as evidence that he wielded final policymaking author-
ity. This argument confuses final decisionmaking authority
with final policymaking authority. While Chief Wells wielded
the former, only the latter is sufficient to hold the City liable
under § 1983 for his actions. See Pembaur, 475 U.S. at 483
18370 DELIA v. CITY OF RIALTO
& n.12. Indeed, if we were to accept the evidence in this case
as establishing Monell liability, “the result would be indistin-
guishable from respondeat superior liability.” Praprotnik, 485
U.S. at 126 (cautioning that “[i]f the mere exercise of discre-
tion by an employee could give rise to a constitutional viola-
tion, the result would be indistinguishable from respondeat
superior liability.”); see Clouthier, 591 F.3d at 1253 (noting
that “ ‘[t]o hold cities liable under section 1983 whenever
policymakers fail to overrule the unconstitutional discretion-
ary acts of subordinates would simply smuggle respondeat
superior liability into section 1983 law [creating an] end run
around Monell.’ ”) (quoting Gillette, 979 F.2d at 1348).
Accordingly, we conclude that the evidence here fails to
establish that Chief Wells had final policymaking authority.
Our conclusion is buttressed by cases from this court as
well as our sister circuits. In Gillette, 979 F.2d 1342, this
court held a fire chief’s actions in firing the plaintiff could not
constitute the basis for municipal liability because the fire
chief was not a final policymaker. Id. at 1350. In arriving at
this conclusion, this court observed that the fire chief’s discre-
tionary authority to hire and fire employees, standing alone,
was “not sufficient to establish a basis for municipal liability.”
Id. This court also noted the fact that the “City Charter and
ordinances grant authority to make City employment policy
only to the City Manager and the City Council.” Id. (emphasis
added). In the absence of any evidence that the fire chief actu-
ally made policy, this court found that he was not a final poli-
cymaker. Id.; see Collins v. City of San Diego, 841 F.2d 337,
341-42 (9th Cir. 1988) (holding city was not liable for
employment actions of police sergeant, even though police
sergeant had “discretion to recommend hiring, firing, and dis-
cipline of employees”, where he was not the city official
responsible for establishing final departmental employment
policy). The Eighth Circuit Court of Appeals reached the
same conclusion in Davison v. City of Minneapolis, 490 F.3d
648, 661 (8th Cir. 2007). In Davison, the court held that there
was insufficient evidence to subject the city to Monell liability
DELIA v. CITY OF RIALTO 18371
for the actions of its fire chief. Id. In reaching this conclusion,
the court noted that although the fire chief had final decision-
making authority regarding employment promotions, there
was no evidence that he was also delegated with authority to
make final municipal policy regarding employment practices.
Id.; see Bechtel v. City of Belton, 250 F.3d 1157, 1161 (8th
Cir. 2001) (holding that city fire chief whose authority over
the operations of the fire department was subject to review by
the city administrator “had no authority as the ‘highest official
responsible for setting policy.’ ”).
[14] Likewise, in Greensboro Prof’l Fire Fighters Ass’n,
Local 3157 v. City of Greensboro, 64 F.3d 962 (4th Cir.
1995), the Fourth Circuit Court of Appeals arrived at the iden-
tical determination. In that case, a firefighter sued the City of
Greensboro under § 1983, alleging retaliation by the fire chief
because of the firefighter’s union participation. Id. at 963-64.
The fire chief had failed to promote him despite the fact that
he had the highest score on the promotions list. Id. Examining
relevant state and city laws, the Fourth Circuit found that
“ ‘final policymaking authority’ over employer-employee
relations in the City of Greensboro rests only with the City
Council and the City Manager.” Id. at 965-66. Accordingly,
the court held that even though the fire chief may have had
final authority to determine whom to promote, he was not
authorized to adopt a “municipal policy embodying anti-union
animus.” Id.; see Crowley v. Prince George’s County, 890
F.2d 683, 685-86 (4th Cir. 1989) (holding that although a
county police chief was responsible for personnel decisions
within the police department, he did not have “final policy-
making authority” that would impute liability to the county
under 42 U.S.C. § 1981). Similarly, in this case, there is a
total absence of any policymaking authority delegated to
Chief Wells by the City’s Code of Ordinances. Chief Wells’s
final decisionmaking authority regarding whether to order
Delia to produce the rolls of insulation, standing alone, is
insufficient to subject the City to liability for his action.
18372 DELIA v. CITY OF RIALTO
Accordingly, we affirm the district court’s grant of summary
judgment in the City’s favor.
IV. CONCLUSION
Upon de novo review, we hold that Delia’s Fourth Amend-
ment rights were violated when Chief Wells, Peel, and Bekker
affected a warrantless “search” of Delia’s home by ordering
Delia to go into his home and bring out the rolls of insulation
for inspection. Because Delia’s actions were involuntary and
occurred as a result of the direct threat of sanctions, we hold
that the warrantless compelled search of Delia’s home vio-
lated his rights under the Fourth Amendment. Nevertheless,
we conclude that these defendants are entitled to qualified
immunity because Delia has not established that this constitu-
tional right was clearly established at the time of Chief
Wells’s order to Delia. We therefore affirm the district court’s
grant of summary judgment on their behalf. We further con-
clude that Filarsky is not entitled to qualified immunity as a
private attorney. Thus, we reverse the district court’s grant of
summary judgment in his favor and remand for trial or further
proceedings consistent with this opinion. Finally, we conclude
that neither Chief Wells, nor any of the other individual
defendants, had final policymaking authority for the City.
Therefore, we affirm the district court’s grant of summary
judgment in favor of the City.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Each party is to bear its own costs on appeal.