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Grieving Mother Sues For Destruction of Home After FIre

A grieving mother who lost her three children and her parents in a tragic Christmas morning fire in 2011, has filed a federal lawsuit against the City of Stamford, Connecticut and local officials for the wrongful demolition of her home in the hours following the fire.

Madonna Badger barely escaped the blaze and had to be hospitalized for smoke inhalation. Local officials were quick to attribute the fire to accidentally discarded fireplace ashes, something Badger vehemently disputes.

The suit alleges that city officials illegally ordered the destruction of the home without giving Badger notice or even an opportunity to remove any of her valued possessions and mementos. Those possessions were lost forever when the city could not determine where the debris had been removed to. The demolition also foreclosed Badger from being able to conduct her own forensic examination of the fire scene to discover the true cause.

Here is the introductory statement from the complaint itself:

This is a claim in which the plaintiff seeks redress against the City of Stamford, Connecticut and two individuals, Building Official Robert D. DeMarco and Director of Operations Ernest Orgera, for the deprivation and denial of her Federal Civil Rights. Briefly, the plaintiff’s home was involved in a fire on Christmas Day December 25, 2011.

As a result of the fire the plaintiff lost her three minor daughters: nine-year-old Lily and her seven-year-old twin sisters, Sarah and Grace; along with her parents, Lomar and Pauline Johnson. On the morning of December 26, 2011, following the fire that claimed five innocent lives, without preserving the critical evidence necessary to conduct a competent objective forensic examination or notifying the plaintiff of their intended actions, the defendants intentionally, arbitrarily and recklessly demolished the plaintiff’s home and its remaining contents.

Immediately following the demolition and in the absence of exigent circumstances the defendants authorized the seizure and disposal of all the physical evidence from the fire. The defendants’ actions were carried out pursuant to one or more established municipal policies. Without any rational basis the defendants intentionally treated the plaintiff and her property differently than other similarly situated residents of Stamford who sustained property damage following a fire.

Here is a copy of the 45 page, ten count complaint: Badger v Stamford Complaint

Among the allegations are violations of Badger’s due process, equal protection, and 4th Amendment rights.  The action was filed in US District Court for the District of Connecticut on January 3, 2013.

The suit does not allege wrongful death. Badger’s ex-husband, Matthew Badger, filed a wrongful death suit in state court last summer on behalf of his three daughters naming a host of parties including:

  • Michael Borcina – a contractor
  • Tiberias Construction
  • Michael Foley
  • Mike Foley’s Fine Carpentry, Inc.
  • Robert Dean
  • New Canaan Design Partners LLC
  • Stephen Holt
  • Shoreline Electrical Contracting LLC
  • The City of Stamford

An additional wrongful death suit on behalf of Madonna Badger’s parents is expected.

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Posted in Civil Suit, Constitutional Rights, Municipal Liability, Wrongful death

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4 comments Posted by on January 9, 2013

2012 Precedent Nothing To Speak Of

2012 has been a relatively quiet fire law year from the perspective of major legal rulings being handed down. In fact, in my annual review for Firehouse which I submitted today, I opted to not even discuss 2012 precedent setting case law (there really weren’t any to speak of) and instead focused on new cases and controversies that developed in 2012… and boy were there alot of them!!!!

Nevertheless, there were a couple of cases that were decided in 2012 that are worth noting. During this holiday week when there is not alot of legal headlines – we pause to take a look back.

Probably the most significant fire law ruling in 2012 was the only US Supreme Court fire service decision, Delia v. City of Rialto, also known by it’s name at the Supreme Court, Filarsky v. DeLia.

There are a few reasons that I opted not to bother discussing this case in the Firehouse article – but probably the biggest is the convoluted reasoning that the Supreme Court used in the case.

Ok… so at this point there are two groups of readers out there – one group saying I am not sure what he means by convoluted, and the other group saying – gee, I wouldn’t call the DeLia decision convoluted.

To the latter group (most likely Federal court judges, law professors, and legal scholars), I agree – convoluted may be a bit strong. Any second year law student should be able to follow the reasoning. BTW – you should stop reading here.

To the rest of the readers – only a legal theorist who has spent way too much time thinking and not enough time doing could possibly reach the conclusion of the Supreme Court in DeLia… and explaining the Court’s decision in full detail would bore us to the verge of tears… or drinking… or both.  I did my best back to explain the ruling back in April, so if you are interested in a more in depth discussion by all means read the April 20, 2012 posting.

The thumbnail sketch of the DeLia case:

  • A firefighter, Nicholas DeLia, was suspected of abusing his injury status.
  • A private investigator observed him buying construction supplies including rolls of insulation.
  • At an interrogation conducted by a private attorney hired by the city (Filarsky) he was asked to explain the purchase.
  • DeLia said he intended to install the insulation in his house when he was better and it was still at his house in its original packaging.
  • He was asked to produce the insulation and on advice of counsel he declined, citing an expectation of privacy because the rolls were in his house.
  • DeLia was then given a written order by the fire chief to produce the insulation.
  • Over the objection of his attorney he was accompanied to his house by two chief officers whereupon he went inside, and came out with the insulation.
  • As a result the investigation was completed.
  • FF DeLia then filed suit against the city, the chiefs and Filarsky alleging a violation of his 4th Amendment Rights. In essence FF DeLia claimed that the order to bring something out of his house constituted a warrantless search – the same as if the chiefs had entered his house without consent or if the chief had ordered him to consent to an entry.
  • The courts in the case at all three levels (trial, court of appeals, and Supreme Court) held that what the chiefs did under Filarsky’s direction was a violation of DeLia’s Fourth Amendment Rights… but here is where it gets convoluted:
  • The courts held that everyone… the fire chief, the others chiefs, the city and even the attorney, Filrsky – had qualified immunity… so FF Delia loses….

I am not sure how much we would gain by getting into the reasoning of the Court, suffice it to say I don’t buy it. A Constitutional violation – any Constitutional violation – should be vindicated – if by no other means than by a $1 nominal judgment. However, our decidedly conservative (anti-employee) courts have been developing an ever increasing body of convoluted case law that finds immunity for this violation and qualified immunity for that violation, and justice be damned. It’s like a judicial game of keep-a-way where even when you win, you lose… and DeLia – whose 4th Amendment Rights were clearly violated – well he loses. Sorry about making you go through all that trouble.

The next case is a wage and hour case, Freeman v. Key Largo Volunteer Fire & Rescue Department et al, 2012 U.S. App. LEXIS 22392 (11th Cir. 2012), decided on October 31, 2012. It is a peculiar case with (not surprisingly) the same outcome as we saw in Delia: a firefighter who sues his fire department-employer, loses.

At issue in the case was whether or not a firefighter who receives $5 per hour is a volunteer receiving “nominal compensation” for his services, or an underpaid employee entitled to at least minimum wage.

Corey Freeman filed suit against Key Largo claiming that the $5 per hour he was paid to serve as a firefighter was less than the $7.25 Federal minimum wage and in violation of the Fair Labor Standards Act (FLSA). Key Largo claimed he got what he got because he was an unpaid volunteer and the $5 was merely nominal compensation.

The court concluded that Freeman was a volunteer. In reaching that conclusion the court inexplicably ignored the US Department of Labor’s primary test for determining if someone is a volunteer or not, the so-called 20% rule. Under that test an organization such as a fire department can give volunteers nominal compensation so long as it does not exceed 20% of what it would pay a similar employee. Here is a link to more discussion on the case, but truthfully it is another 2012 ruling that leaves me scratching my head… and another reason why I omitted it from my Firehouse article.

Tomorrow we will take a look at some other cases from 2012… unless of course there is some breaking fire law event!!!!

 

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Posted in Civil Suit, Constitutional Rights, FLSA, Politics, Volunteers

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No comments Posted by on December 27, 2012

Supreme Court Rules in Firefighter Case

The US Supreme Court has set precedent with another fire service case – this time focusing on the liability of an attorney hired to conduct an investigation into a firefighter’s misconduct. It is a case we have been following for some time out of Rialto, California.

Rialto firefighter Nicholas B. Delia was off-injured and department administrators were suspicious given the circumstances and his disciplinary history. He was placed under surveillance and filmed purchasing building supplies including rolls of fiberglass insulation.

As part of the investigation Delia was called to appear for an interview conducted by attorney Steve Filarsky. Filarsky was not a public employee but rather had been hired by the city as a contractor. That seemingly subtle point plays a pivotal role in the case.

As the interview unfolded, Delia acknowledged buying the supplies, denied working while off injured, and denied doing work to his house.  He claimed the fiberglass was still at his home and still in the original packaging. After several brief adjournments where Filarsky met with fire department officials, Delia was asked if he would consent to allowing Battalion Chief Mike Peel to enter his house to conduct a warrantless search. Delia declined.

Delia was subsequently ordered to produce the rolls of insulation from his house. Delia’s attorney (who was present) objected to the order, insisting it violated the 4th Amendment. Following a contentious meeting in which the lawyer threatened to sue the fire department, the chiefs and Filarsky, Delia was given a written order to produce the insulation. The order was signed by Chief Wells.

Chief Peel and Battalion Chief Frank Bekker then followed Delia to his house where they waited outside as Delia produced the requested rolls. The investigation seemly ended when Delia produced the rolls.

Delia filed suit under 42 USC §1983 against the Rialto Fire Department, Fire Chief Stephen C. Wells, Battalion Chief Peel, Battalion Chief Bekker, and Filarsky alleging that the order to produce the rolls of insulation constituted an illegal warrantless search in a violation of his 4th Amendment rights.

The District Court concluded that Delia’s 4th Amendment rights were in fact violated, but granted summary judgment to the defendants concluding that all parties had qualified immunity. The 9th Circuit affirmed the District Court as to all defendants except for Filarsky ruling that his status as a contractor make him ineligible for qualified immunity. Filarsky appealed to the US Supreme Court.

The issue for the Supreme Court was relatively narrow: was Filarsky, as a contractor, eligible to receive qualified immunity to the same extent as the full-time government employees.

At the center of the legal dispute is a judicially created principle that a governmental agent who intentionally violates someone’s Constitutional Rights can only be held liable if the right that is violated is “clearly established”. According to the Supreme Court’s precedent, a government agent has qualified immunity when the rights that are violated are not “clearly established”.

The trial court ruled that while Delia’s rights had been violated, he had failed to establish that those rights were “clearly established as of the date of Chief Wells’s order, such that defendants would have known that their actions were unlawful.”

The Court looked at the history behind §1983, which granted people whose Constitutional rights were violated by governmental actors acting “under color of law” the right to sue to vindicate their Constitutional rights. The Court noted that in 1871 when §1983 was enacted, many if not most governmental workers were part time and in some cases unpaid officials. In fact, relatively few were what we would consider today as being full time employees.

The Court reasoned that today, “immunity under §1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.”

The Court also compared the investigation conducted by the Rialto Fire Department to the investigative mechanism used by other fire departments such as FDNY:

“New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”

Based on this reasoning, the Court ruled that Filarsky should have received qualified immunity, and Delia loses. The decision was unanimous, 9-0. It was issued Tuesday.

Here is a copy of the decision:  10-1018

And here are some stories about the case. Another.

(more…)

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Municipal Liability, Search and Seizure

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10 comments Posted by on April 20, 2012

US Supreme Court Accepts Fire Service Case on…. Lawyer’s Liability

Another fire service case is headed to the US Supreme Court, this one involving a California attorney hired to investigate sick leave in the Rialto Fire Department.

Firefighter Nicholas B. Delia was off-injured and department administrators were suspicious given the circumstances and his disciplinary history. He was placed under surveillance and filmed purchasing building supplies including rolls of fiberglass insulation.

As part of an investigation Delia was called to appear for an interview conducted by attorney Steve Filarsky. Filarsky was not a public employee but rather had been hired by the city as a contractor. That subtle point is the focus of the appeal.

As the interview unfolded, Delia acknowledged buying the supplies, but claimed they were still at his home and still in their original packaging. After several brief adjournments where Filarsky met with fire department officials, Delia was asked if he would consent to allowing Battalion Chief Mike Peel to enter his house to conduct a warrantless search. Delia declined.

According to the 9th Circuit’s decision “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.”

Chief Peel and Battalion Chief Frank Bekker then followed Delia to his house where they waited outside as Delia produced the requested rolls. The investigation seemly ended when Delia produced the rolls.

Several months later Delia filed suit alleging a violation of his Fourth Amendment Right to be free from unreasonable searches. The suit named the Rialto Fire Department, Fire Chief Stephen C. Wells, Battalion Chief Peel, Battalion Chief Bekker, and Steve Filarsky. The District Court dismissed the complaint concluding that all parties had qualified immunity. The 9th Circuit affirmed the District Court as to all defendants except for Filarsky ruling that his status as a contractor make him ineligible for qualified immunity.

That will be the issue for the US Supreme court. The Delia case is one of seven cases that the Court accepted for the upcoming term.

Here is a link to the 9th Circuit’s decision.

Here is more on the story.

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Posted in Civil Suit, Constitutional Rights, Disciplinary Action, Labor Law, Municipal Liability

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3 comments Posted by on September 27, 2011