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U.S. Supreme Court

Supreme Court to Decide Immunity for Private Lawyer Aiding City Internal Probe

Posted Sep 28, 2011 6:00 AM CDT
By Debra Cassens Weiss

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A private lawyer seeking immunity from a suit over his work for a California town will have his appeal heard by the U.S. Supreme Court.

The court granted cert to lawyer Steve Filarsky on Tuesday, SCOTUSblog reports. Filarsky had been retained by the city of Rialto, Calif., to work on internal investigations of employees and wound up as a defendant in a suit filed by a city worker, firefighter Nicholas Delia.

Delia was caught on videotape buying building materials and unloading them at his home on a sick day, according to the cert petition (PDF). Delia’s explanation was that the materials were not used in his home remodeling project and they were still sitting unused at his home. Filarsky asked to see the unused materials, and the fire chief followed up with an order to produce the materials. Delia complied when fire officials visited his home, then sued Filarsky, the fire chief and other fire officials for a violation of his Fourth Amendment rights.

A federal district court held both Filarsky and the officials were protected by qualified immunity, but the San Francisco-based 9th U.S. Circuit Court of Appeals said Filarsky didn't enjoy the same protection from suit as government workers.

Filarskey’s cert petition says the 9th Circuit opinion creates a circuit split. “In essence, this 9th 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,” the cert petition says.

The case is Filarsky v. Delia. The Associated Press and The BLT: The Blog of Legal Times covered the cert grant. SCOTUSblog had a story on significant cert petitions that are still pending.

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