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Argument preview: Private attorneys, public service, and the doctrine of qualified immunity


42 U.S.C. § 1983 provides that any person acting “under color of” state law who deprives another person “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”  Section 1983 principally serves to regulate the conduct of government employees.  But private individuals, too, can be liable when they are clothed with governmental authority.

The immunities available under § 1983, however, do not necessarily follow § 1983 liability.  Private persons sued under § 1983 may not be entitled to qualified immunity — which is available to a defendant unless he violated “clearly established” legal rights, of which a reasonable person would have known — even when government employees would be immune under identical circumstances.  So held the Supreme Court in Richardson v. McKnight and Wyatt v. Cole.  Nonetheless, those decisions acknowledged that private individuals might be entitled to immunity under different circumstances.

The case of Filarsky v. Delia forces the Court to explore those circumstances once again.  Specifically, the question is whether a private attorney, retained by a city to assist in an administrative investigation, is entitled to assert qualified immunity from a suit brought by the person who was under investigation.  The issue is practically significant, which makes Filarsky an intriguing case.  But even more intriguing is the possibility that the Court will jettison the rationale of its prior decisions and create a new doctrinal framework.


Respondent Nicholas Delia was a firefighter for the City of Rialto, California.  In July 2006, he fell ill while working to control a toxic spill.  A physician provided Delia a series of off-duty work orders, which lacked any accompanying activity restrictions.  While Delia was absent from work, the city suspected he was “off-work on false pretenses” and hired a private investigator, who captured Delia on video exiting a home improvement store with plywood and several rolls of home insulation.

The city opened an internal affairs investigation and ordered Delia to attend an interview, at which petitioner Steve Filarsky – an attorney in private practice whom the city had retained to assist with personnel matters – questioned Delia about his home improvement projects.  Delia explained that, though he had purchased some materials, he had not installed them; they were still sitting in his kitchen.  Filarksky consulted with Rialto’s fire chief, who signed a written order requiring Delia to proceed to his home (followed by two of the city’s fire battalion chiefs) and produce the insulation for inspection.  Delia complied:  He drove home, entered his house, and placed the insulation on his front lawn.  The battalion chiefs watched from a car parked at the curb and, upon seeing the insulation, drove away.  The city closed its investigation without taking any action.

Delia subsequently brought this § 1983 action against several defendants – the city, the fire department, the fire chief, the two battalion chiefs, and Filarsky – contending that the fire chief’s order violated the Fourth Amendment.  The district court granted summary judgment to all defendants.  It held that Delia had failed to establish municipal liability under the standard of Monell v. Dept. of Social Services, and that each of the individual defendants was entitled to qualified immunity.

The Ninth Circuit affirmed in part and reversed in part.  Most relevant here, the court concluded that, although the fire chief and the two battalion chiefs (as government employees) were entitled to qualified immunity, Filarsky was not.  The panel reasoned that it was bound by a prior Ninth Circuit decision, Gonzalez v. Spencer, which had held that a private attorney (retained by a county government) was not entitled to qualified immunity because “she [had] pointed to no special reasons significantly favoring an extension of governmental immunity to private parties in her position.”  The Ninth Circuit’s conclusion conflicted with the Sixth Circuit’s ruling in Cullinan v. Abramson, which held that there was “no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”

Facing a clear circuit split, the Supreme Court granted Filarsky’s petition for certiorari.

 The briefs

In his brief, Filarsky makes two basic arguments.  First, he contends that both history and the Court’s precedent establish that qualified immunity “shields private attorneys temporarily engaged to provide legal counsel to the government in the execution of essential public duties.”  As to the Court’s prior decisions, Filarsky argues that Wyatt and Richardson rejected the Ninth Circuit’s “categorical” approach.  Though a defendant’s status as a private person is relevant, the Court has “expressly left open the availability of qualified immunity to attorneys like petitioner who are retained to work in close coordination with government employees in the execution of essential governmental activities.”  As to history, Filarsky asserts that the “overwhelming evidence is that, at the time of Section 1983’s enactment, a great percentage of governmental activities were performed by private individuals working on an interim basis for local and state governments,” and that “immunity protections for such privately retained individuals were a firmly rooted tradition.”

Second, Filarsky argues that granting qualified immunity “to temporarily engaged attorneys . . . fully comports with the reasons for the immunity doctrine.”  The doctrine’s principal purpose is to prevent “unwarranted timidity” in the performance of governmental functions.  And that purpose “applies doubly to temporarily retained attorneys.”  Private attorneys, no less than government officials, can be chilled by the prospect of personal liability.  Moreover, failing to extend immunity to private defendants would substantially undermine the doctrine’s purposes.  For if private defendants are held jointly and severally liable for the actions of government employees, then government employee conduct would no longer really be immune.

Filarsky argues that the test is “whether the attorney is a functional equivalent of a government employee,” and this turns on four factors: (1) the “nature of the advisory or representative role”; (2) the degree of coordination between the attorney and government employees; (3) the role the attorney “plays in the execution of an essential governmental activity”; and (4) the “immunity accorded to government employees performing the same role.”  Here, Filarsky is entitled to immunity because he was plainly functioning in a manner nearly identical to a government attorney.

The United States has filed an amicus brief supporting Filarsky.  The Government contends that the Court’s decisions establish that private persons are entitled to qualified immunity “when sued for acts taken (1) in service of the public interest as opposed to his own private interests, and (2) while working directly alongside government officials or under close governmental supervision.”  Filarsky is entitled to immunity because he “worked closely with fire department officials” and “did so under their direct supervision.”

For his part, Delia contends that the Ninth Circuit properly construed Richardson.  Critically, the city retained Filarsky to participate in an internal affairs investigation, and Filarsky “failed to cite to any cases or historical evidence that would support his claim that private actors conducting administrative personnel investigations enjoyed qualified immunity.”  The Court’s “passing” reference in Richardson to immunities granted to doctors or lawyers “perform[ing] services at the behest of the sovereign” is inapposite, as the case the Court cited, Tower v. Glover, involved the denial of immunity to private lawyers acting as public defenders, rather than “private investigators.”  Because there is no historical precedent of immunity being accorded to attorneys working as private investigators, Filarsky cannot meet the Richardson standard.

Delia devotes the balance of his brief to attacking Filarsky’s proposed test.  In doing so, he plays down Filarsky’s status as an attorney, instead calling him a “private investigator” or a “private party conducting a workplace investigation.”  He describes Filarsky’s concern over possible “chilling effects” as unfounded, a “speculative theory not supported by market realities.”  Private attorneys are already susceptible to liability for malpractice and for violations of existing law; thus, it is unlikely that a lack of qualified immunity will render governmental representation too burdensome.  Delia further notes that the “market” for conducting internal investigations comprises both attorneys and non-attorneys, and that the competition in this market is sufficient to preclude unwarranted timidity.


Again, the Supreme Court has never squarely held that a private individual is entitled to qualified immunity under § 1983.  But neither has it held that a defendant’s status as a government employee is a categorical prerequisite to immunity.  Indeed, the Court seemed to presage a case like Filarsky when it noted in Richardson that the circumstances there did “not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision.”

Still, the Court might find this case quite analogous to Richardson, such that immunity is inappropriate.  The Court’s decision in Richardson hinged on its conclusion that extending immunity to private prison guards would fail to advance the doctrine’s purposes because the guards worked for a “private company subject to competitive market pressures.”  This meant “not only that a firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement, but also that a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and a more effective job.”  Likewise, the Court might find that the competitive market for legal services offered to state and local governments makes the extension of qualified immunity unnecessary.

But the Court’s precedent leaves ample room for the Court to hold that Filarsky is entitled to qualified immunity – and that seems the most likely result.  First, as Filarsky and the United States emphasize, the Ninth Circuit’s decision creates an anomaly:  Of all the individuals involved with the fire chief’s order, only Filarsky (the sole private party) faces potential liability under § 1983—even though § 1983 is principally concerned with regulating the conduct of public officials.  This is bound to strike the Justices as passing strange, if not simply wrong.  Second, the Roberts Court has generally been sympathetic to assertions of qualified immunity, and this case seems an unlikely candidate for bucking that trend.

Perhaps more interesting than the outcome will be the Court’s decisional path.  The Court could decide the case narrowly, distinguishing Wyatt and Richardson without challenging their basic premises.  Both are rather easily distinguishable.  Wyatt involved a defendant who had invoked state replevin law to obtain an order to seize his former business partner’s property, an action taken in pursuit of his own financial interests.  And Richardson involved prison guards employed by a “private firm, systematically organized to assume a major lengthy administrative task . . . with limited direct supervision by the government.”  Here, by contrast, Filarsky was performing a traditional governmental function, in pursuit of pursuit of the public interest, and he served under the close supervision of the city’s fire officials.

Another possibility, though, is that the Court will discard Richardson altogether.  Richardson was a five-to-four decision, in which Justices Scalia, Kennedy, and Thomas dissented.  And in his dissent, Scalia (joined by Kennedy and Thomas) argued that the majority had “contradict[ed] our settled practice of determining § 1983 immunity on the basis of the public function being performed.”  In other words, a defendant’s status as a private individual is irrelevant to the immunity inquiry; “immunity is determined by function.”  Whether Chief Justice Roberts and Justice Alito agree with Scalia on this point, of course, is a matter of speculation, but it seems a reasonable guess.  And if so, there may be five votes to hold that a defendant’s status – as a private contractor or government employee – is beside the point.  Filarsky offers the Roberts Court an opportunity to hold that questions of immunity under § 1983 turn purely on the function the defendant performs.

In all events, Filarsky seems likely to prevail, and the Ninth Circuit likely to be reversed.  Plus ca change.

Recommended Citation: Bradley Joondeph, Argument preview: Private attorneys, public service, and the doctrine of qualified immunity, SCOTUSblog (Jan. 13, 2012, 4:01 PM),