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.
Questions as Framed for the Court by the Parties
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. Delia’s doctor issued several letters excusing him from work, but the Fire Department was suspicious of his illness, especially because he had recently experienced disciplinary issues. The Department hired a private investigator, who filmed Delia buying several rolls of building insulation at a home improvement store. Based on those photos, the Department commenced a formal internal investigation to determine whether Delia was missing work on false pretenses. It asked Steve Filarsky, a private attorney who had previously worked for the City of Rialto, to lead the investigation.
During an internal affairs interview with Filarsky, Delia admitted that he purchased the insulation to repair his house, but claimed that he had not yet installed it. Subsequently, Filarsky asked Delia to allow Department officials to enter his home and inspect the insulation, but Delia refused and questioned Filarsky’s authority to order the warrantless search. Unable to get Delia to consent to the search, Filarsky finally procured a written order from the Fire Chief, which directed Delia to produce the insulation paper for inspection. Reluctantly, Delia acquiesced, allowing Department officials to follow him home, and producing several rolls of insulation for their inspection.
Delia filed a civil rights claim under 42 U.S.C. § 1983 against both Filarsky and City officials, alleging that the warrantless inspection of his house constituted an unreasonable search and seizure in violation of the Fourth Amendment, as well as an invasion of privacy in violation of the Fourteenth Amendment,The United States District Court for the Central District of California, however, dismissed the claim, ruling that all defendants were entitled to qualified immunity.
Delia then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the grant of qualified immunity to the City officials, but reversed the grant of immunity to Filarsky. The Ninth Circuit refused to follow Sixth Circuit precedent, which held that private attorneys retained by the government are entitled to qualified immunity against a plaintiff’s Section 1983 claim. Instead, the Ninth Circuit conformed to its own case law, which declined to extend qualified immunity to private attorneys in civil rights suits, even when those attorneys were hired by the government. The Supreme Court granted certiorari to resolve this conflict between the circuits.
The Supreme Court will decide whether to extend qualified immunity to a private attorney working for the government in an internal employee investigation. Here, Delia sued both the City of Rialto and Filarsky for alleged violations of his constitutional rights. The Ninth Circuit held that while qualified immunity was available for the Rialto Fire Chief and other government officials, Filarsky was not entitled to immunity because he is a private attorney, not a government employee. Filarsky argues that both history and public policy considerations require that private attorneys in his situation enjoy qualified immunity. Delia, however, disputes Filarsky’s historical analysis, and further asserts that the various immunity rationales do not apply to private actors who are subject to the competitive forces of the marketplace.
Historical Role of Private Attorneys in Government Settings
Filarsky first argues that, by denying qualified immunity to private attorneys working for the government, the Ninth Circuit has established a rigid categorical rule that finds no support in Supreme Court precedent. He asserts that in Wood v. Strickland, the Court granted immunity to school board members, even though most of them received little or no compensation, and were thus more like part-time government employees. Further, Filarsky notes that in Richardson v. McKnight, —a decision that denied qualified immunity for private-contractor prison guards—the Court expressly left open the possibility of extending immunity to private lawyers working closely with government.
Ultimately, though, to determine whether private actors are entitled to qualified immunity, courts must perform a two-part test, asking whether both history and the purposes of government-employee immunity support a finding of immunity. Focusing on the first prong, Filarsky argues that publicly employed attorneys traditionally benefitted from immunity, and that the Ninth Circuit’s holding in this case undermines the historical role of private counsel hired to advise and represent the government. As an example, he asserts that the common law defenses of good faith and probable cause were equally available to private and public employees, and courts did not treat individuals differently based on whether they were permanently or temporarily employed by the government. Filarsky also argues that, because it has long been understood that publicly employed attorneys are not mere advisors but public fiduciaries, these attorneys must enjoy qualified immunity in the course of serving the public interest.
Delia, however, asserts that Filarsky’s immunity argument fails to account for the context of the case at hand: while past courts did extend qualified immunity to some publicly employed attorneys, here, Filarsky was hired to conduct an internal workplace investigation—a function that does not require a legal degree. Furthermore, Delia contends that personnel investigations likely did not exist in 1871, when Section 1983 was enacted; indeed, the Court would not recognize due process protections for dismissed government employees until 100 years later. Delia therefore concludes that there is no historically rooted tradition of affording immunity to private individuals conducting personnel investigations.
The Purposes of § 1983 and the Qualified Immunity Doctrine
With reference to the second prong of the immunity test, Filarsky asserts that extending qualified immunity in this case would further the purposes underlying both Section 1983 and the qualified immunity doctrine. Extending immunity, he argues, would ensure that state and local governments maintain critical access to legal counsel, which in turn promotes government compliance with the law and leads to more effective public action. Further, just as the major purpose behind qualified immunity is to prevent unwarranted timidity in government officials performing their duties, extending qualified immunity to private attorneys retained by the government will ensure that these attorneys provide candid advice in the public’s interest, unaffected by fear of personal liability.
On the other hand, without qualified immunity, Filarsky contends that many private attorneys will simply turn away from government work, concluding that the liability risks outweigh the benefits of public sector work. Furthermore, without immunity, many private attorneys working in the public sector may require the government to indemnify them for adverse litigation, thus forcing the government to potentially pay for large damages awards. According to Filarsky, such an indemnification scheme may defeat the very purpose of the qualified immunity doctrine, holding the government indirectly liable for the actions of immune government defendants.
However, Delia counters that the normal forces of marketplace competition address qualified immunity’s main rationale—avoiding unwarranted timidity. He argues, for example, that profit-seeking motivations, as well as competition for scarce governmental clients, will encourage Filarsky and other private attorneys to serve actively and assertively in the best interest of the public, minimizing the risk of timid decision-making and advice-giving.
Furthermore, Delia maintains that the other policy concern associated with immunity—preventing suits that may distract public employees from performing their duties—is not seriously implicated in this case. For one, he argues that the risk that a civil rights lawsuit will emanate from an internal personnel investigation—distracting an investigator in Filarsky’s position—is speculative at best. Moreover, Delia asserts that Filarsky’s “doomsday” scenario of private attorneys fleeing the private sector is fanciful; he notes that Filarsky’s prediction has not materialized in the period since the Ninth Circuit handed down its decision denying immunity.
A New Test for Qualified Immunity
Filarsky ultimately proposes that a functional-inquiry test be used in determining whether a private attorney is entitled to qualified immunity. Under this test, courts would evaluate whether the private attorney is functionally equivalent to a government employee; the test would look to the nature of the private attorney’s duties, the amount of supervision and control the attorney is subject to, the attorney’s role in the government’s exercise of essential duties, and the immunity afforded to government officials in that same role. Citing Richardson and other cases, Filarsky maintains that the functional-inquiry test comports with Supreme Court precedent and accords with the Court’s substantive approach to immunity, leading to immunity determinations that are based on an individual’s role and duties rather than on the individual’s formal title.
Delia, however, attacks Filarsky’s functional test as arbitrary and unsupported by precedent.First, Delia notes that determining whether a private attorney is under “close” government supervision is a fact-sensitive question that may require intense scrutiny; the required inquiry may thus circumvent immunity by dragging public employees back into the courtroom. Delia also points out that non-attorneys often conduct internal investigations; he argues that the functional-inquiry test may therefore sweep too broadly, requiring courts to extend immunity to non-attorneys who perform government personnel investigations. Finally, Delia suggests that Filarsky himself would fail the proposed functional test, as he was merely investigating Delia’s use of sick leave, was personally subject to little supervision by city officials, and enjoyed no clear historical precedent of private-party immunity in workplace investigations.As an alternative to Filarsky’s functional-inquiry test, Delia proposes that courts perform a “reasonableness” inquiry, asking, for instance, whether a reasonable attorney trained in conducting government personnel investigations would know that a warrantless search of Delia’s home was illegal. .
Will Denial of Qualified Immunity Deter Private Attorneys from Representing Governmental Clients?
Filarsky argues that, without the protection of immunity, private attorneys will be deterred from representing the government, fearing that they alone may bear damages awards to plaintiffs. He first contends that the loss of immunity may significantly raise private attorneys’ professional insurance premiums, driving many of them back into the private sector. Filarsky points out that many private attorneys are already sacrificing their financial interests in representing the government, acting instead out of a sense of public duty; the additional costs of insurance premiums, though, may definitively tip the balance in favor of private sector work.He contends that the fact that many insurance policies do not cover constitutional torts intensifies the problem, and argues that even when such claims are covered, attorneys may still be held liable for damages that exceed the coverage amount. In addition, Filarsky points out that some states prohibit insurance companies from covering punitive damages, which are often sought in Section 1983 actions.
Delia, however, describes Filarsky’s argument as speculative and exaggerated, asserting that private attorneys are unlikely to abandon the public sector just because they are denied qualified immunity. For instance, he points out that all private attorneys—whether serving private or public clients—are faced with the potential risk of malpractice suitsIn light of their continuous exposure to such costly and time-consuming claims, Delia contends that the mere denial of qualified immunity is unlikely to dissuade private attorneys from seeking public sector work. Even if denied qualified immunity, moreover, Delia argues that private attorneys such as Filarsky may have alternative means of shielding themselves from liability. For example, he notes that private attorneys may still be able to assert a “good faith” defense against Section 1983 actions, a possibility expressly contemplated in several Supreme Court cases.
Will Denial of Qualified Immunity Impede the Government’s Ability to Perform Its Functions?
Filarsky contends that denying qualified immunity to private attorneys would simultaneously raise the cost and lower the quality of legal services provided to the government, thus preventing it from functioning efficiently. Amici for Filarsky point out that, due to budget constraints, various governmental bodies—municipal, state and federal—rely heavily on private attorneys for cost-effective legal services. However, when faced with higher insurance premiums, private attorneys may either pass on the costs of liability to the government, or refuse public representation altogether. Additionally, Filarsky avers that denial of immunity to private attorneys would encourage them to offer more cautious and liability-conscious legal advice instead of full and candid opinions, thus forcing the government to make decisions on a less informed basis. Finally, the United States notes that government employees who hired or worked with private attorneys may be required to participate in suits brought against those attorneys, wasting valuable time and effort.
In response, Delia argues that, regardless of the availability of qualified immunity, normal market pressures would ensure that private attorneys provide their clients with efficient and vigorous performances. Thus, he contends that, when private attorneys are more concerned with protecting themselves against lawsuits than with providing appropriate legal advice, market competition would replace these attorneys with others who can provide high quality services at affordable prices. Furthermore, Delia asserts that immunity-related liability concerns are unlikely to distract private attorneys in the performance of their professional obligations, given that the risk of such liability is lower than the malpractice risk that all attorneys experience. Finally, he cautions, granting immunity to private attorneys may inadvertently require the same protection for other government contractors, such as non-attorney workplace investigators.
The Court’s decision will address the contours of the qualified immunity doctrine, resolving whether private attorneys who conduct government workplace investigations are entitled to qualified immunity in federal civil rights claims. Filarsky argues that affording qualified immunity comports with the historical role of private attorneys engaged in government work, while Delia maintains that policy reasons—and the realities of the professional marketplace—overcome the need for immunity. The Court’s decision will stoke the on-going debate about the increasing use of private contractors for governmental functions. Written by:
Frank D. Wagner
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)