Alaska Employment Law

A municipal fire chief ordered an employee to retrieve items from his home, after the employee had refused to consent to either permitting the deputy chief to enter the employee’s home, or removing items from the home to permit the deputy chief to inspect them outside the home.  The employee complied, and then sued for breach of his 4th Amendment rights.  The 9th Circuit held: 1) the City violated the employee’s 4th Amendment rights; 2) the individual municipal defendants were immune, because the right wasn’t clearly-established; 3) the City was immune (not liable) because the Fire Chief lacked policy-making authority; and 4) the private attorney conducting the internal investigation was subject to Section 1983 liability, but not entitled to immunity.  Several of the holdings justify comment. 

On the 4th Amendment issue, the panel held that the employee’s compliance with the order wasn’t voluntary, because the order was backed by the threat of dismissal for insubordination if refused.

On the issue of Monell municipal liability issue, the panel distinguished “policy making authority” from “final decisionmaking authority.”  While it was clear that the Fire Chief had acted within his operational authority in issuing the order to retrieve personal items, and that he needed approval for that order from no higher municipal official, the City Ordinance required the Chief to obtain approval from the City Council for any policy-making.  Because the Council didn’t participate in the challenged act, no municipal liability attached. 

On the private actor issue, the panel noted extra-Circuit authority and Supreme Court dicta that imposed liability on private individuals acting under color of state authority, but felt constrained by standing 9th Circuit authority to deny the private attorney any immunity defense. 

The opinion was authored by District Judge Mark Bennett of the Northern District of Iowa, who spoke to the Employment Law Section of the Alaska Bar Association several years ago.  Bennett maintains a searchable website that includes many of his often scholarly employment law opinions.  The judge is prolific.  Go here.

Delia v. City of Rialto, ___ F.3d ___ (9th Cir. Sept. 9, 2010)