Opinion analysis: A presumption of qualified immunity for private actors
The ultimate outcome in Filarsky v. Delia was largely foreordained – probably after the Court granted certiorari, and almost certainly after oral argument. The Ninth Circuit had held that a private attorney performing work on a contract basis for a city government was categorically precluded from the protection of qualified immunity when sued under 42 U.S.C. § 1983. The sole reason, the Ninth Circuit reasoned, was the attorney’s status as a private contractor rather than as a full-time government employee. The Supreme Court unanimously reversed that judgment Tuesday, holding that attorneys like Mr. Filarsky were just as entitled to qualified immunity as the city employees whom they work alongside.
Though the result was unsurprising, the Court’s decision in Filarsky is nonetheless notable for two reasons. First, the Court distinguished its two prior cases denying qualified immunity to private actors –Wyatt v. Cole and Richardson v. McKnight – on the ground that each presented highly idiosyncratic situations and thus represented very narrow holdings. Wyatt and Richardson remain good law, but the Court has sharply curtailed their scope. Second, by so limiting Wyatt and Richardson – and by speaking broadly about the lack of any meaningful difference between part-time government contractors and full-time government employees – Filarsky effectively establishes a presumption that all persons performing public functions on behalf of the government are entitled to the immunities recognized under § 1983.
The underlying facts of Filarsky were largely unimportant, at least to the legal issue the Court resolved. Mr. Filarsky was a private attorney who specialized in personnel matters. The City of Rialto, California, hired him to assist in an internal affairs investigation. In the course of that investigation, Filarsky was involved in the issuance of an order that may have constituted a search of Mr. Delia’s house. (More specifically, the order required Delia to retrieve some items from his house and display them on his front lawn.) Delia later sued Filarsky and several city officials under § 1983, claiming that the order violated the Fourth Amendment.
The district court dismissed each of Delia’s claims. But although the Ninth Circuit affirmed the dismissal of Delia’s claims against the city employees, it remanded the case for a trial on Delia’s claim against Filarsky. The Ninth Circuit reasoned that, while the city’s full-time employees were entitled to qualified immunity, Filarsky – as a private attorney performing work for the city on a contract basis – was not.
The majority opinion
Writing for the Court, Chief Justice Roberts followed the well-trodden path of cases elaborating the contours of the immunities afforded by § 1983, pursuing two basic lines of inquiry. First, he explored the nature of those immunities available under the common law when Congress enacted § 1983 in 1871. Second, he examined the various policy rationales underlying those immunities.
As to history, the Court began its analysis by noting that, in 1871, government was much smaller, and government service had not yet attained the status of a full-time profession. As a result, private citizens were “actively involved in government work, especially where the work most directly touched the lives of the people.” Indeed, there was no “clear conception of a professional office, that is, an office the incumbent of which devotes his entire time to the discharge of public functions, who has no other occupation, and who receives a sufficiently large compensation to enable him to live without resorting to other means.”
This was true of most governmental functions, from the operation of local post offices to the prosecution of crimes and even to the position of Attorney General of the United States (which did not become a full-time office until 1853). Thus, reasoned the Chief Justice, the common law drew no “distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.” It extended these protections to private individuals performing all sorts of governmental functions, including those “engaged in law enforcement activities.”
The Chief Justice then turned to the underlying policy justifications for the doctrine of qualified immunity, and he found no reason to disturb the result dictated by deeply rooted common-law traditions. Extending immunity to private contractors performing governmental service (1) discourages private actors from “unwarranted timidity” in carrying out their duties; (2) ensures that talented private contractors are not deterred from public service by the threat of liability; (3) prevents private actors from facing full liability for actions taken in conjunction with their immune (full-time employee) co-workers; and (4) mitigates the possibility that government employees will be distracted by lawsuits against private contractors with whom they work (for instance, by being required to testify), even if the employees are immune themselves.
The Court further noted that basing the availability of immunity on whether an individual was a “private contractor” or a “government employee” would invite “significant line-drawing problems.” When, exactly, does someone become an “employee”? What if Filarsky had spent more than half his billable hours working for the city? Or what if he had worked exclusively for the city for a full calendar year, while maintaining his private law office? Uncertainty in immunity doctrine, reasoned the Court, “frustrate[es] the purposes immunity is meant to serve.” It is “little better than no immunity at all.”
Finally, the Court distinguished the two cases on which Mr. Delia had largely hung his hat: Wyatt v. Cole and Richardson v. McKnight. In both cases, the Court had denied qualified immunity to persons sued under § 1983, largely because those persons were private actors rather than government employees. The Court in Filarsky construed Wyatt and Richardson quite narrowly, effectively treating them as anomalies. Wyatt, said the Court, “involved no government agents, no government interests, and no government need for immunity.” It was the odd case of private individuals acting under the color of state law to pursue purely private ends. Richardson too, said the Court, was atypical. It involved “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms.” Nothing of that sort was at issue in Filarsky. Nor do such circumstances present themselves “in the typical case of an individual hired by the government to assist in carrying out its work.”
This last sentence is significant. It effectively means that, “in the typical case,” private individuals performing government work are entitled to the same immunity as full-time government employees. Or, as the Court wrote elsewhere in its opinion, “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.” Outside the atypical case, a person’s status as a private contractor is simply irrelevant.
The two concurrences
Justices Ginsburg and Sotomayor, while joining the Court’s opinion in full, filed short concurring opinions. Justice Ginsburg addressed an issue outside the question presented. Specifically, she noted that, at least in her view, whether Filarsky “knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit” – thereby subjecting him to liability under § 1983 despite his qualified immunity – remained open on remand. Justice Sotomayor’s separate writing explained that, though she agreed that whether an individual was “a formal employee” of the government “is not a sound basis on which to deny immunity,” it does not therefore follow “that every private individual who works for the government in some capacity necessarily may claim qualified immunity.”
Again, the outcome in Filarsky was wholly unsurprising. Everyone following the case had predicted that the Court would flip the Ninth Circuit, especially since the decision below had applied a rigid, categorical rule – no immunity for private actors – that seemed to contradict premises latent in the Court’s precedent. Indeed, if an individual’s status as a private contractor were all that mattered, the Court’s opinion in Richardson should have been much shorter and simpler. The factors the Court cited in Richardson would have been beside the point.
What is important about Filarsky is that it creates a new presumption, one that governs the “typical case” of a private contractor performing governmental service. The new governing rule is that, at least in most cases, the availability of immunity under § 1983 does not depend on whether the “individual working for the government does so as a full-time employee, or on some other basis.”
Filarsky did not overrule Richardson. Nor did it formally embrace the “functional approach” articulated by Justice Scalia in his Richardson dissent – an approach that would focus exclusively on the function performed by the individual, ignoring her employment status entirely. But Justice Scalia’s decision to join the Court’s opinion in Filarsky in full, without writing a separate concurrence, is telling. Richardson is technically still good law, but only as a hollowed-out shell. The functional approach has effectively won the day.