In recent months the federal courts have afforded some guidance in an area of the law that remains relatively ill-defined: the parameters of public employees’ Fourth Amendment right to be free from unreasonable searches and seizures by their employer, who, unlike that of their private-sector counterparts, just so happens to be the government. While it has long been true in theory that public employees do not check their constitutional rights at the door of their governmental employer, the reality has been a general trend by the courts to equate public workers with their private sector counterparts in a way that diminishes public employee rights vis-à-vis the government.
This trend finds the high watermark of its expression in the 1994 United States Supreme Court case, Waters v. Churchill (511 U.S. 661), where the Court held that a public employee may be fired for speech even if the employer is mistaken about what the employee actually said. As former Justice Sandra Day O’Connor explained, “the government as employer has far broader powers than the government as sovereign.”
The High Court hewed to this doctrinal line of thinking without expressly saying so in this summer’s landmark decision, City of Ontario v. Quon (130 S.Ct. 2619), where the justices unanimously reversed and remanded a decision by the lower Ninth Circuit Court of Appeals which had held previously that a police officer had a reasonable expectation of privacy in text messages and that a police department’s review of those messages violated the officer’s Fourth Amendment rights.
The Supreme Court, instead, found that the Ontario Police Department’s review of text messages on Sergeant Quon’s employer-provided pager was “reasonable” and “not excessively intrusive” because it amounted to an “efficient and expedient way to determine whether Quon’s overages [in excess of the monthly usage fee contracted by the OPD] were the result of work-related messaging or personal use.” (Id., at 2631.) The Court also “punted,” in effect, on the issue of whether Quon possessed a privacy expectation in his text messages because of the newness of the technology, claiming that the “judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society becomes clear.” (Id., at 2629.)
Most telling to this author is the somewhat throwaway line in the Court’s decision that “the search would be regarded as reasonable and normal in the private-employer context,” citing a concurrence by Justice Antonin Scalia in an earlier public employee search-and-seizure case. This hearkens back directly to the earlier Waters v. Churchill-line of reasoning: when it comes to constitutional rights, public employees are little different from private employees, who don’t enjoy the same level of constitutional protections once thought to exist in the public-sector workplace.
A far better decision from an employee perspective, however, was handed down just a couple of weeks ago from the Ninth Circuit, and the facts of the case are worth describing in some detail. In Delia v. City of Rialto, the Court held that a public employer’s ordering a fire fighter to submit, in essence, to a literally warrant-less search of his home amounted to a violation of the employee’s Fourth Amendment rights. In the Delia case, the City of Rialto became suspicious of fire fighter Delia’s off-work status, ordered by Delia’s doctor after Delia had become ill while working to control a toxic spill, and hired a private investigator to conduct surveillance on Delia. This occurred despite the fact that the doctor had not placed any service restrictions on Delia.
After observing a film made surreptitiously of Delia buying several rolls of fiberglass building insulation at a home improvement store, the City launched an internal affairs investigation and ordered Delia to appear for an interview. After showing Delia the film, the interrogator (a private attorney hired by the City), asked Delia whether the insulation had been installed, to which Delia responded that it was still bagged at his house. After obtaining the authority of the fire chief, the attorney-investigator asked Delia to allow a battalion chief to enter his home and conduct a warrantless search. After Delia refused on the advice of counsel, the attorney-investigator asked if Delia would volunteer to have the battalion chief follow Delia to his house where Delia could then bring out the insulation rolls to prove that they had not been installed. Again on the advice of counsel, Delia refused.
At this point, the attorney-investigator presented Delia with a written order, signed by the fire chief, to produce the insulation. The interview concluded, and two battalion chiefs then followed Delia home in a city vehicle, where 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.
The Ninth Circuit had little trouble in finding that Delia’s Fourth Amendment rights had been violated. The Court recited the oft-repeated principles which gird the Fourth Amendment right to be free from unreasonable searches and seizures as articulated in a wealth of case law, such as, “at 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 government intrusion” and “the search of a home’s interior is the prototypical area of protected activity.”
But the Ninth Circuit refused to find liability on the parts of the fire chief and the battalion chiefs for the constitutional violation given a rather complicated legal doctrine known as qualified immunity: if a constitutional right is not clearly established at the time of its violation, the violators are qualifiedly immune from liability. And the City also escaped municipal liability given the absence of any policy to contravene the employee’s Fourth Amendment rights – the existence of a policy is a prerequisite to a finding of liability on the part of a municipality. Which left only the private attorney, with regard to whom the Court remanded the case to the trial court for further proceedings consistent with the Court’s decision. Which, in turn, leaves us with a victory that while important for public employee labor as a whole, seems somewhat Pyrrhic for plaintiff Delia himself. Sometimes even when you win, it ends up feeling rather like you’ve lost . . . To quote Charles Dickens’s Oliver Twist, sometimes “the law is an ass.”
“Roll the Union On . . .”
