Filarsky v. Delia  
  P
rivate lawyer retained by government is entitled to seek qualified immunity  

Decided April 17, 2012 
[Opinion full text

Delia was a city firefighter who was the subject of an internal affairs investigation. The City retained Steve Filarsky, a private attorney, to participate in the investigation. Filarsky conducted an administrative investigative interview at which Delia had been ordered to appear. During the interview Filarsky ordered Delia to produce certain materials that were at his home. While two battalion chiefs waited in a car, Delia went into his home and brought the materials out and placed them on the lawn. Delia then sued under 42 USC Section 1983 claiming a violation of his constitutional rights during the investigation. The 9th Circuit decided that all of the individual defendants who were City employees were entitled to qualified immunity. However, the 9th Circuit decided that Filarsky was not entitled to qualified immunity because he was not an employee of the City.

The US Supreme Court unanimously reversed, deciding that a  private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983. This holding follows common law principles of immunity that were incorporated into §1983, and nothing about the reasons the Supreme Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule.

Case below: Delia v. City of Rialto (9th Cir 09/09/2010) 
Official docket sheet 
Certiorari granted: September 27, 2011. 
Oral argument:  Tuesday, January 17, 2012.

Question presented in petition for certiorari:   

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of this Court declined to extend qualified immunity to private prison guards, but expressly noted a historical basis of immunity for private lawyers working "at the behest of the sovereign." Id. at 407. The Richardson majority also expressly did not preclude qualified immunity for private parties working as "adjunct[s] to government." Id. at 413. Based on Richardson, the Sixth Circuit has accorded immunity to such "private" lawyers. Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997). Contravening Richardson and expressly disagreeing with Cullinan, the Ninth Circuit in this case denied qualified immunity to a "private" lawyer retained by the government solely because of his "private" status, even though it accorded qualified immunity to all of the individual government actors involved, thereby completely exonerating them for the very same conduct, which did not violate any clearly established rights. App., infra, 4-5, 12-24.

 The question thus presented is: 

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. 

Briefs on the merits: 

Certiorari Documents: 

Counsel: