Whether a private attorney retained by the government is entitled to the defense of qualified immunity when the attorney is working with government employees in an internal affairs investigation.
After petitioner Steve Filarsky, a private attorney retained by the City of Rialto to conduct an internal affairs investigation, prompted City officials to order respondent Nicholas Delia, a local firefighter, to consent to a warrantless search of his home, Delia brought a civil rights claim against both Filarsky and the City, alleging, among other things, a violation of his Fourth Amendment right to be free from unreasonable search and seizure. The district court granted a motion by Filarsky and the officials to dismiss the case on qualified immunity grounds, but the Ninth Circuit reversed in part, ruling that Filarsky, as a private attorney, could not enjoy immunity. Other circuit courts, however, have granted qualified immunity to private lawyers retained by the government. The Supreme Court must resolve the circuit split.
Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee.
Firefighter Delia claimed to feel sick after helping to clean up a toxic spill. See Delia v. City of Rialto, 621 F.3d 1069, 1071 (9th Cir.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
• American Bar Association: Private Lawyers Doing Government Work Should Have Qualified Immunity, ABA Urges Supreme Court (Dec. 2011)
• NSBA.org: NSBA and Others File Amicus Brief Urging Supreme Court to Uphold Qualified Immunity for Private Attorneys Representing Public Entities (Dec. 1, 2011)
