Nicholas Delia, a firefighter employed by the City of Rialto missed work after becoming ill on the job. Suspicious of Delia's extended absence, the City hired a private investigation firm to conduct surveillance on him. After Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation and hired Filarsky, a private attorney, to interview Delia. At the interview attended by Delia's attorney, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify this claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered Delia to bring the materials outside his home for the official to see. Officials then followed Delia to his home, where he produced the materials.
Delia brought an action in federal court against the City, the Fire Department, Filarsky, and others, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.
The Supreme Court reversed the Ninth Circuit's decision with respect to Filarsky. The Court held that common law principles of immunity were incorporated into 42 U.S.C. §1983 and should not be abrogated in the absence of clear legislative intent. As a result, it concluded: "Immunity under § 1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis."
The Court identified four primary reasons for its decision to recognize immunity under § 1983 as it is recognized under common law:
First, immunity "protect[s] government's ability to perform its traditional functions." It does so by helping to avoid "unwarranted timidity" in performance of public duties.
Second, affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to "ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service." The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals. Because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts.
Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees.
Finally, distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to "reasonably anticipate when their conduct may give rise to liability for damages." The Court reasoned that, "[a]n uncertain immunity is little better than no immunity at all."
LCW Practice Pointer:
The Filarsky decision is an important one because it extends qualified immunity protections to individuals, such as private investigators hired by public entities pursuant to a contract for services, who are not actual employees of a government entity. Qualified immunity is an important protection public employees assert when sued for alleged civil rights violations under 42 U.S.C. §1983. However, it is important to keep in mind that qualified immunity is "qualified" and not absolute. It will immunize an individual from suit unless it can be shown that the individual violated a "clearly established" constitutional right. In the Filarsky case, the trial court will still have to consider whether Filarsky's conduct of requiring Delia to go into his house and pull out the building materials violated "clearly established" constitutional law, such as the prohibition against warrantless searches. Accordingly, while the Filarsky decision allows a private investigator to use the defense of qualified immunity; it does not guarantee that the defense will be appropriate if the investigator violated "clearly established" constitutional law.