News & Updates

A Private Attorney Temporarily Retained by the Government to Carry Out Its Work Is Entitled to Seek Qualified Immunity Under §1983 May 31, 2012

The U.S. Supreme Court recently issued a decision with important and favorable ramifications for those representing attorneys who have been retained by governmental entities to perform governmental functions.

In Filarsky v. Delia (132 S.Ct. 1657; 2012 U.S. LEXIS 3105), Delia, a firefighter for the city of Rialto, California, missed work after becoming ill on the job. Suspicious of Delia’s extended absence, the city hired a private investigation firm to conduct surveillance. After initiating an internal affairs investigation, the city retained attorney Filarsky, a private attorney, to interview Delia. Filarsky interviewed Delia and, in order to verify Delia’s claim, Filarsky asked Delia to allow the fire department to enter his home. When Delia refused, Filarsky ordered him to bring certain materials out of his home for the officials to see. Refusing to do so, the interview concluded, and thereafter officials followed Delia to his home, where he produced the requested materials.

Delia brought an action under 42 U.S.C. §1983 against the city, the fire department, Filarsky, and other individuals alleging that the order to produce materials violated his Fourth and Fourteenth Amendment rights. The district court granted immunity to the individual defendants on the basis of qualified immunity. The Court of Appeals for the Ninth Circuit affirmed with respect to all individuals except attorney Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a city employee.

The Supreme Court of the United States was asked to determine whether an individual hired by the government to do its work is prohibited from seeking such immunity, solely because he works for the government other than on a permanent or full-time basis. The court looked at our common law as it existed when Congress passed §1983, which it stated also required an appreciation of the nature of the government in the mid-nineteenth century. The court stated that government was much smaller as 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. Rather, government was administered by members of society who temporarily or occasionally discharged public functions.

Given all of this, the court stated that it comes 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 who carried out government responsibilities. Noting the myriad of cases nationwide over the years that have afforded immunity to individuals engaged in public service on a temporary or occasional basis, the Supreme Court held that it reads §1983 in harmony with general principles of tort immunities and defenses, and it proceeds along on the assumption that common-law principles of immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent. The court stated that under this assumption, immunity under §1983 should not vary depending on whether the individual working for the government does so as a full-time employee or on some other basis. 

The court discussed further how such a holding protects the government’s ability to perform its traditional functions by helping to avoid the timidity in performance of public duties, ensuring talented candidates are not deterred from public service, and preventing the harmful distractions from carrying out the work of government that can often accompany damages suits.

Impact: This decision is extremely helpful when representing an attorney retained by any governmental office or division to perform governmental functions. A motion to dismiss should be filed when representing such a professional.

For more information on the impact of this case, please contact: