Private Attorney Retained for Government Investigation May Seek Qualified Immunity

A unanimous Supreme Court ruled on Tuesday in Filarsky v. Delia that a private person temporarily hired by the government to perform an internal investigation may seek qualified immunity from a civil rights suit arising out of his investigation.  The ruling sends the case back to the lower courts to determine whether the private person, Filarsky, is actually immune under qualified immunity principles.

The case arose out of a strangely aggressive investigation of a relatively minor incident.  Delia, a City of Rialto (Cal.) firefighter, missed work after becoming ill on the job.  When the City became suspicious (after someone saw Delia buying building supplies) it initiated an internal investigation and hired Filarsky, a private attorney, to conduct it.  As part of the investigation, Filarsky asked Delia to allow fire department officials to enter Delia's home to take a look at the unused building materials.  When Delia refused, Filarsky ordered him to bring the materials out of his home for the officials to see.

Delia sued the City, the fire department, City officials, and Filarsky for civil rights violations under Section 1983.  The lower courts granted qualified immunity to all individual defendants, but the Ninth Circuit ruled that Filarsky didn't qualify--because he was a private attorney, not a City employee.

Chief Justice Roberts wrote for a unanimous Court.  He applied the familiar test--looking to the general principles at common law in 1871, when Congress passed Section 1983, and the reasons that the Court has extended immunity under Section 1983 suits--and concluded that Filarsky could claim qualified immunity.

Chief Justice Roberts wrote that lines between government employment and private practice weren't so clear for attorneys in 1871, and that private attorneys often performed government functions, and vice versa.  As a result, "it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities."  Op. at 8.  And "[i]ndeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself."  Op. at 10.  Moreover, the principal reason for qualified immunity, avoiding "unwanted timidity" in performance of public duties, applied equally to Filarsky.  Thus, Chief Justice Roberts wrote, Filarsky could claim qualified immunity.

Justice Ginsburg wrote a concurrence, emphasizing that the lower courts now have to determine whether Filarsky's conduct violated a "clearly established" right--and therefore whether he's actually immune.  Justice Sotomayor wrote a concurrence, saying that this case doesn't mean that all private individuals working temporarily for the government may claim qualified immunity, or that they all may not.  According to Justice Sotomayor, "[t]he point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law."

SDS