In a unanimous decision, the U.S. Supreme Court has held that private individuals temporarily retained to carry out government work are entitled to seek qualified immunity from suits brought under Section 1983. Filarsky v. Delia, No. 10-1018 (U.S. Apr. 17, 2012).
The Court reversed a decision from the Ninth Circuit that a private attorney retained by the City of Rialto, California, to investigate alleged misconduct of a city firefighter was not entitled to qualified immunity from a federal suit later brought under § 1983 by the firefighter alleging violations of his Fourth and Fourteenth Amendment rights.
In that case, a firefighter (Delia) missed work after becoming ill on the job. Suspicious of his extended absence, the City hired a private investigation firm to conduct surveillance on him. When Delia was seen buying fiberglass insulation and other building supplies at a home improvement store, the City initiated an internal affairs investigation. Believing that Delia was absent from work to fix up his house rather than recover from an illness, the City hired a private attorney (Filarsky) to interview the firefighter. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify Delia’s claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. Delia’s attorney repeatedly threatened to sue Filarsky if he issued an order compelling Delia to produce the materials. Nevertheless, Filarsky did in fact prepare the Order, which was signed by the fire chief. Pursuant to the Order, city officials followed Delia to his home, where he produced the materials. The fire department officials thanked Delia for producing the materials and immediately left.
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 the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to all the individual defendants on the basis of qualified immunity. The Ninth Circuit affirmed with respect to all individual defendants except the attorney, concluding that he was not entitled to seek qualified immunity because he was not a City employee.
In deciding that the attorney was entitled to assert qualified immunity for his role in the investigation, the Supreme Court looked to the underlying purposes of the legal doctrine granting immunity to persons engaged in government work. In writing the opinion, Chief Justice Roberts gave a compelling history of private individuals involved in public service. He could find no reason to make a distinction between a private individual paid by the government and clearly engaged in government service versus a full-time government employee. Of particular importance to the Court was the fact that persons taking on public service, whether on a temporary or full-time basis, should not be timid in their performance or shy away from such service altogether out of fear of lawsuits.
On a side note; there has been some additional controversy since the SCOTUS decision. A popular legal blog has reported that, after the decision came down, attorney Filarsky sent letters to both the plaintiff and the attorney he had at the time of the investigation, essentially telling both of them to “Go to hell.” After six years of litigation going all the way to the United States Supreme Court for Delia’s hurt feelings, it is not difficult to sympathize with Mr. Filarsky’s need to vent on this one.