Filarsky v. Delia
Whether a private attorney temporarily retained by a city government to assist in conducting an official internal investigation is entitled to seek qualified immunity from a lawsuit brought under 42 U.S.C. § 1983.
The Decision
9-0 decision · Opinion by John G. Roberts Jr. · 2012
Majority Opinion— John G. Roberts Jr.concurring ↓
The Supreme Court reversed the Ninth Circuit in a unanimous decision authored by Chief Justice John G. Roberts Jr. The Court held that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity, just as a government employee performing the same function would be. The distinction the Ninth Circuit drew — between government employees and private individuals doing government work — had no basis in the common law tradition from which qualified immunity developed.
Chief Justice Roberts traced the history of immunity doctrine back to its common law roots, demonstrating that for centuries, the protection from suit for government work was tied to the function being performed, not to the formal employment status of the person performing it. The opinion noted that throughout American history, governments have relied heavily on private individuals to carry out public functions. In the founding era, for example, private citizens served as constables, tax collectors, and even prosecutors. These individuals were afforded the same legal protections as formally employed government agents when carrying out official duties. The Court found no historical basis for stripping that protection from someone merely because they were paid as an outside contractor rather than a salaried employee.
The Court also emphasized powerful policy reasons for its holding. If private individuals hired by the government could not claim qualified immunity while the government employees working alongside them could, governments would face difficulty attracting talented professionals to assist with public work. Individuals would be reluctant to accept temporary government engagements if doing so exposed them to personal liability that their government-employee counterparts would be shielded from. The Court noted that this was precisely the scenario that played out in Delia's case: Filarsky was doing exactly the same work as the city employees who accompanied him, yet the Ninth Circuit's rule would have left him uniquely exposed to liability.
The decision was careful to note that it addressed only qualified immunity — which protects individuals from suit when their actions do not violate clearly established law — and that this protection attaches based on the nature of the work being performed. The Court reversed the Ninth Circuit's judgment and remanded the case for further proceedings consistent with its opinion.
Concurring Opinions
Justice Sonia Sotomayor filed a concurring opinion, joined by Justice Ruth Bader Ginsburg, agreeing with the result but writing separately to emphasize the narrowness of the holding. She stressed that the case involved an individual retained by the government, and cautioned that the Court's reasoning should not be read to automatically extend qualified immunity to large corporate entities acting as government contractors, which raise distinct policy concerns.
Background & Facts
Nicholas Delia was a firefighter employed by the City of Rialto, California. After Delia took an extended period of sick leave, city officials grew suspicious that he was not actually ill but was instead using his time off to renovate his home. The city launched an internal affairs investigation and, as it sometimes did in such matters, retained Steve Filarsky, a private attorney with experience in employment law, to help conduct the inquiry.
During a formal interview of Delia — at which Delia's own attorney and his union representative were present — Filarsky questioned Delia about purchases of building materials, specifically rolls of insulation. To try to confirm their suspicions without actually entering Delia's home, Filarsky suggested that Delia be directed to produce the materials from his house so investigators could see them. Several city fire department officials, along with Filarsky, accompanied Delia to his home, where Delia ultimately refused to bring out the materials. Delia then filed a federal civil rights lawsuit under 42 U.S.C. § 1983, claiming that the demand to produce the materials and the visit to his home violated his rights under the Fourth and Fourteenth Amendments. He sued Filarsky as well as the city officials involved.
The U.S. District Court for the Central District of California granted summary judgment to all defendants, concluding they were all entitled to qualified immunity because their actions did not violate any clearly established constitutional right. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed the immunity finding for the city's own employees but reversed as to Filarsky. The Ninth Circuit held that because Filarsky was a private attorney — not a full-time government employee — he could not claim qualified immunity. The appellate court reasoned that the Supreme Court's precedents extending qualified immunity applied only to actual government employees.
The Supreme Court agreed to hear the case to resolve an important question about the scope of qualified immunity: whether this protection is available only to people who are formally on the government's payroll, or whether it can also extend to private individuals who are temporarily engaged to carry out government work. The question had broad implications because governments at all levels routinely hire private contractors, consultants, and professionals to perform public functions.
The Arguments
Filarsky argued that qualified immunity should be available to anyone performing government work, regardless of whether they are a formal government employee or a private individual temporarily retained by the government. He contended that the common law tradition of immunity focused on the nature of the function being performed, not on the employment status of the person performing it.
- At common law, immunity protections extended to all individuals carrying out government functions, including private citizens temporarily serving in government roles such as constables, tax collectors, and prosecutors.
- Denying qualified immunity to private individuals performing government work would create a two-tiered system where people doing the same job side by side receive different legal protections, discouraging qualified professionals from accepting government engagements.
- The policy rationale behind qualified immunity — preventing the threat of personal liability from chilling vigorous performance of public duties — applies equally to private individuals working on behalf of the government.
Delia argued that qualified immunity is a special protection meant only for government employees and should not be extended to private individuals like Filarsky, who retain the ability to decline government work and who are motivated by private profit rather than public service.
- The Supreme Court's prior decisions on qualified immunity had focused on government employees, and extending that protection to private contractors would go beyond established precedent.
- Private individuals working for the government have different incentives and accountability structures than public employees, and the market provides its own form of discipline and regulation for private contractors.
- Extending qualified immunity too broadly would weaken the ability of citizens to hold private actors accountable when they violate constitutional rights while working alongside government agents.