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Supreme Court Extends Qualified Immunity to Private Attorney

The U.S. Supreme Court has extended qualified immunity to a private lawyer who was retained by a city to serve as an internal affairs investigator.

In August 2006, Rialto, California firefighter Nicholas Delia became ill while responding to a fire. His doctor ordered him to take three weeks off work, but his employer did not believe he was sick.

The city hired a private investigator to conduct surveillance on Delia. When he was observed buying several rolls of insulation and other building supplies, the city concluded that Delia was not ill but was taking time off to do home construction.

An internal affairs investigation was initiated and Delia was ordered to appear for an investigative interview.

City officials hired Steve Filarsky, an experienced employment lawyer who had represented the city in several previous investigations, to conduct the interview. During the interview, Filarsky asked Delia about the building materials. Delia admitted he had purchased the items but said he had not yet done any work on his house.

Filarsky and fire officials asked to enter Delia’s home to view the unused building materials. Delia refused. Filarsky then asked Delia if he would bring the materials outside so his employer could see them without entering his residence. Delia again refused.

Filarsky ordered him to produce the materials but Delia’s attorney objected and threatened to sue the city. Filarsky then prepared an order for the Fire Chief’s signature, directing Delia to produce the building materials.

Fire officials accompanied Delia to his home. His attorney and union representative went into the house and returned with four rolls of insulation. Delia’s employers thanked him and left.

Delia then sued the city, the Rialto Fire Department, three fire officials, Filarsky and ten unidentified defendants. The district court concluded that all the defendants were entitled to qualified immunity, and Delia appealed.

The Ninth Circuit Court of Appeals affirmed with respect to everyone except Filarsky. The appellate court concluded that since Filarsky was a private attorney rather than a city employee, he was not entitled to qualified immunity. See: Delia v. Rialto, 621 F.3d 1069 (9th Cir. 2010).

The U.S. Supreme Court granted cert and reversed, stating “that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.”

Ultimately, the Court held that “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.” Noting that the common law did not differentiate, the Court found “no justification for doing so under § 1983.”

The Court distinguished other cases in which it had found that private parties were not entitled to raise a qualified immunity defense, including Wyatt v. Cole, 504 U.S. 158 (1992) and Richardson v. McKnight, 521 U.S. 399 (1997) [PLN, Sept. 1997, p.1].

Those cases “did not implicate the reasons underlying recognition of qualified immunity because the defendant ... had no connection to government and pursued purely private ends,” the Court wrote. “Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work.” Accordingly, the Ninth Circuit’s decision was reversed. See: Filarsky v. Delia, 132 S.Ct. 1657 (2012).

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Related legal cases

Filarsky v. Delia

Delia v. Rialto