Qualified Immunity Should Not Be Expanded in Filarsky v. Delia

JURIST Guest Columnist Jeffrey White, Senior Counsel for the Center for Constitutional Litigation, P.C., argues that the Supreme Court should not extend the doctrine of qualified immunity in § 1983 cases beyond those available at common law when the section was enacted...
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Should "Abraham Lincoln [be] left holding the bag?" That appears to be how the petitioner would frame the central question for the US Supreme Court in Filarsky v. Delia. At oral arguments on January 17, 2012, at least one justice indicated that the answer might guide the Court's disposition of the case.

Actually, the issue in this case is the scope of qualified immunity that shields government employees sued for civil rights violations. In 1871, Congress created a tort-like cause of action, codified as 42 USC § 1983 for damages against those who violate federal constitutional or statutory rights "under color of" state law. The statutory text does not make provision for any defenses or immunities from liability. Nevertheless, the Supreme Court has presumed that Congress intended to incorporate those immunities that were (1) "firmly rooted in the common law" as of 1871; and (2) supported by strong policy reasons. For example, judges and prosecutors enjoy absolute immunity from § 1983 liability for actions taken in the course of their governmental duties. Governmental employees are accorded qualified immunity and are entitled to dismissal of a § 1983 action for damages unless the plaintiff demonstrates that the government worker violated "clearly established statutory or constitutional rights of which a reasonable person would have known," as articulated in Harlow v. Fitzgerald. That immunity serves public policy by allowing government actors to discharge their duties without the inhibiting fear of liability and by removing a potential disincentive to public service.

Filarsky v. Delia asks the Court whether this judicial doctrine extends to an attorney who is not a government employee, but was retained by a governmental body to work with government employees in carrying out governmental business.

Officials of the City of Rialto began to suspect that one of the city's firefighters, Nicholas Delia, was fraudulently using his sick leave to work on his house. The city retained attorney Steve Filarsky to work with the fire chief and two fire department battalion chiefs in conducting an internal investigation. Delia had been observed purchasing fiberglass insulation and other home improvement supplies. Delia denied that he had installed the insulation, but refused to consent to a search of his house to verify that fact. After warning Delia that refusal to cooperate in the investigation could result in termination, Filarsky obtained a written order from the fire chief requiring Delia to produce the packages of uninstalled insulation for inspection. Delia drove to his home, accompanied by the battalion chiefs, and brought out the unopened rolls of insulation. He subsequently brought suit against the City of Rialto, the fire department officials, and Filarsky under § 1983, alleging violation of his Fourth Amendment rights.

The federal district court concluded that all the defendants, including Filarsky, were entitled to qualified immunity and granted their motions for summary judgment. The US Court of Appeals for the Ninth Circuit reversed as to Filarsky. The court found that ordering Delia to bring the rolls of insulation out of his home for inspection by fire department officials constituted an unreasonable warrantless search in violation of the Fourth Amendment. Although Delia himself brought the insulation out of his house, he did so only under threat of termination. Nevertheless, the court found that the circumstances here were unlike any prior case and that Delia had not established that the city officials violated a "clearly established" constitutional right. The court held that qualified immunity did not extend to Filarsky, who was not a municipal employee, but rather a private attorney who had been retained by the city to perform a specific task. The Supreme Court granted certiorari.

Central to both sides' arguments is Richardson v. McKnight, where the Court held that private prison guards working for an independent contractor were not shielded by qualified immunity. The Court there found no historical precedent for immunizing private prison guards, nor any strong policy reason for doing so. In an aside, however, the Court observed that the common law did provide "a kind of immunity for certain private defendants, such as doctors or lawyers who performed services at the behest of the sovereign." Filarsky argued that nineteenth century America was replete with examples of private attorneys serving as temporary judges or prosecutors and representing state and local governments as litigants in civil matters. Private attorneys doing government work included such legal luminaries as John Marshall, Daniel Webster and Abraham Lincoln. Filarsky argued that Congress could not have intended to protect government lawyers from suit for constitutional violations while a private attorney "like Abraham Lincoln [is] left holding the bag."

Noting that governmental bodies continue to retain private attorneys to perform government work more cheaply and with greater independence than in-house government lawyers, Filarsky proposes a new, more expansive immunity. Qualified immunity would shield a private attorney's "discretionary judgments made in close coordination with government employees as part of the execution of an essential governmental activity." Essentially, because Filarsky was "the functional equivalent of a government employee," he should enjoy the same legal protections.

The US government lent its support to the petitioner. The Solicitor General affirmed that during the nineteenth century, private attorneys frequently worked with governmental officials under color of law to serve the public. Indeed, "before the creation of the US Department of Justice in 1870, federal agencies often relied on private attorneys to provide their legal counsel." The government conceded that such attorneys were not given immunity from suit at common law, though they could raise a good faith defense against damages caused by unintentional violations. The government's position was that qualified immunity "should be available to a private party acting under color of state law when the party (1) has been retained by government to assist in serving public interests, and (2) works alongside or under close supervision of government officials."

Delia argued in response that Richardson provides the appropriate test, requiring both historical precedent and policy favoring immunity. Historically, apart from the recognized common law immunities for judges and prosecutors, there does not appear to be a single precedent for granting immunity to an attorney retained to conduct an investigation. In addition, granting immunity to private attorneys would not further the policies underlying immunity for government employees. The pressures of a competitive marketplace as well as an attorney's professional and ethical obligations provide sufficient incentive to vigorously pursue the interests of the governmental client.

At oral argument, several justices pressed petitioner's counsel, Patricia Millett, on her proposed formulation of the immunity as available where the private attorney worked "in close coordination with" or under the supervision of government employees. Millet explained that the purpose of the immunity was to protect the government's decision making by protecting the attorney. Justice Ginsburg suggested that the logic of her position would support a broader rule of immunity whenever a governmental body employs a private attorney to assist it in its work. Justice Sotomayor observed that the government employees were not making the decisions in this case; the fire chiefs were following Filarsky's instructions. Justice Scalia suggested that the broader rule would be needed to assure that an independent counsel would be protected. "If you can be sued for acting under color of law you ought to have the defenses that people who were acting with legal authority have."

The Solicitor General also appeared to favor a broader qualified immunity rule than petitioner advocated, stating that when private parties are doing the business of government and can be sued under § 1983, "there should be a presumption in favor of qualified immunity." Chief Justice Roberts appeared to agree, venturing that attorneys in Filarsky's position need to be protected not only from lawsuits, but also from the threat of a lawsuit.

Michael McGill, arguing for Delia, emphasized that no party or amicus had identified a single instance of immunity granted to a private attorney in a position similar to Filarsky's, much less a practice "firmly rooted in the common law." Several justices questioned McGill regarding the difficulty of distinguishing between an attorney who is a government employee and one who is an independent contractor. Justice Breyer was clearly bothered by a rule that granted immunity to the government lawyer, but not to the private attorney performing the same task. "[I]f Abraham Lincoln today" were retained to prosecute a particular case, "in your view Abraham Lincoln would not have had immunity, but the local prosecutor would have." McGill responded that prosecutorial immunity has long been recognized by the Court, though he conceded that a private prosecutor merely investigating a matter would not enjoy the same immunity as the public prosecutor.

Justice Ginsburg pointedly indicated that in her view, ordering Delia to bring the rolls of insulation out of his house to be inspected by city officials, without a warrant, without Delia's consent, and under threat that he would be fired, violated a "clearly established right." Chief Justice Roberts and Justice Alito suggested that they might be in agreement on that point. However, neither party raised that issue — Filarsky because the Ninth Circuit found in his favor that the order did not violate a clearly established right, and Delia because he had prevailed below as to Filarsky's lack of immunity.

The Court's consistent premise for bestowing § 1983 immunity on certain actors is that Congress implicitly intended to incorporate into the statute those defenses and immunities that were well recognized at common law. Because this judicial doctrine deprives Americans of the cause of action Congress created and their day in court to vindicate their fundamental rights, it should be construed very narrowly. Petitioner and the US government do not seriously dispute that no historic practice supports qualified immunity for private attorneys like Filarsky in this case. Instead, as Justice Kagan pointed out, they appear to ask the Court to eliminate any historical basis for immunity so that "really all we're looking to is policy considerations." The Court should view its responsibility as extending beyond what a majority might deem good public policy at the moment. The Court's calling is to carry out the lawmakers' intent to fashion a broad remedy for Americans to protect their constitutional rights.

Jeffrey White is Senior Counsel at the Center for Constitutional Litigation in Washington, DC, and authored the amicus curiae brief filed in this case by the American Association for Justice (formerly ATLA).

Suggested citation: Jeffrey White, Qualified Immunity Should Not Be Expanded in Filarsky v. Delia, JURIST - Sidebar, March 14, 2012, http://jurist.org/sidebar/2012/03/jeffrey-white-qualified-immunity.php.



This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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