THE KING CAN DO NO WRONG. WHO MADE YOU KING?

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by Charles Miller

One of the guiding principles of the American Revolution was a very strong disagreement with the ancient notion that “the king can do no wrong.”   However, judges and legislators have managed to keep the notion more or less alive to this day in the form of “sovereign immunity” as a defense to most legal claims against the government and government employees. As a result, our government and its employees are often “immune” from a lawsuit and never held responsible for injuries they cause.

In an age of increasing “privatization” of government work, an old question rises again: just who qualifies as the “sovereign” entitled to claim immunity?  The Supreme Court took up this issue again just a few weeks ago in Filarsky v. Deliam, 132 S.Ct. 1657 (2012).

Nicholas Delia, a firefighter employed by the City of Rialto, California, became ill while responding to a toxic spill in August 2006. Under a doctor’s orders, Delia missed three weeks of work. The City became suspicious of Delia’s extended absence, and hired a private investigation firm to conduct surveillance on him. The private investigators observed Delia purchasing building supplies—including several rolls of fiberglass insulation—from a home improvement store. The City surmised that Delia was missing work to do construction on his home rather than because of illness, and it initiated a formal internal affairs investigation of him.

Delia was ordered to appear for an administrative investigation interview. The City hired Steve Filarsky to conduct the interview . During the interview, Filarsky questioned Delia about the building supplies. Delia acknowledged that he had purchased the supplies, but claimed that he had not yet done the work on his home.

When Filarsky requested permission for someone to enter Delia’s home to view the materials, Delia refused. Filarsky then asked Delia if he would be willing to bring the materials out onto his lawn, Delia again refused to consent. Unable to obtain Delia’s cooperation, Filarsky ordered him to produce the materials for inspection.

Delia’s attorney objected to the order, asserting that it would violate the Fourth Amendment. When that objection proved unavailing, Delia’s counsel threatened to sue the City and Filarsky.  Despite these threats, Filarsky prepared and obtained an order directing Delia to produce the materials.

As soon as the interview concluded, Delia, his attorney, and a union representative went into Delia’s house, brought out the four rolls of insulation, and placed them on Delia’s lawn.  The City’s investigators, who remained in their car during this process, thanked Delia for showing them the insulation and drove off.