The United States Supreme Court recently issued a decision in Filarsky v. Delia, ruling that a private attorney retained by the city to assist in the investigation of a firefighter’s potential wrongdoing was entitled to seek the protection of qualified immunity.


Officials of the City of Rialto, California became suspicious when Delia, a city firefighter, took an extended absence when he became ill after he was exposed to a toxic spill on the job.  The city hired a private investigation firm to conduct surveillance on Delia.  The investigators discovered Delia purchasing fiberglass insulation and other building supplies during his leave.  This led the city to initiate a formal internal affairs investigation of Delia.  As part of this process, the city hired Filarsky, a private attorney, to interview Delia. 


During the interview Delia admitted to purchasing the supplies but denied having actually started installing the materials in his home.  Filarsky asked Delia to allow a fire department official to enter his home to verify Delia’s claims.  When Delia refused, Filarsky ordered Delia to bring the materials out of the home to allow fire department officials to observe.  Delia’s attorney threatened to sue Filarsky and the rest of the department if they followed through with the order, but nevertheless Filarsky issued the order.  Once at the house, Delia produced the unused supplies and placed them on the lawn for observation. 


Delia brought an action against the City, the Fire Department, the Fire Chief, other Fire Department officials, and Filarsky alleging that the order to produce the building materials violated his rights under the Fourth and Fourteenth Amendments.  The Ninth Circuit affirmed the District Court’s finding that Delia’s claims should be dismissed as to all defendants acting on behalf of the state due to qualified immunity; however it removed Filarsky, because he was a private attorney and not a City employee.


The U.S. Supreme Court granted certiorari and reversed the Ninth Circuit’s decision, finding that Filarsky was permitted to assert qualified immunity.  The Court looked at the common law as it existed in 1871, noting that there was no distinction between full-time public servants and private individuals engaged in public service carrying out government responsibilities at that time.  These common law principles of immunity were incorporated into § 1983 and must not be abrogated absent a clear legislative intent.


The Court also addressed the strong public interest in allowing private agents acting on behalf of the government to assert qualified immunity.  First, it noted, the government has an interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business.  Secondly, the court stated that affording immunity to those acting on behalf of the government serves to “ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.”  Third, the public has an interest in ensuring that government duties are performed free form the distractions that can accompany lawsuits.  Lastly the Court discussed the significant line drawing issues that are presented when one tries to distinguish among those who carry out the public’s business based on a person or entity’s relationship with the government.