Court Time: Qualified immunity extends to government’s outside counsel

April 18, 2012


(Editor’s note: The Supreme Court continues to issue significant rulings, and we’re going to continue to write about them throughout the month of April.)

Click here for the first post on strip searches for minor offense arrestees.

Click here for the second post on Obama’s remarks on SCOTUS’s health care deliberation.

Imagine that you’re outside counsel hired to do some work for a city government.

In the course of doing your work for the government, you and your associates (who are on the government’s payroll) inadvertently enrage a sleeping honey badger.

Luckily, there’s a bomb shelter nearby, which all of your associates enter safely.

Unfortunately, just as you are about to enter, the door suddenly slams and locks (courtesy of a capricious hobgoblin who looks on, shrugs, and says “tough luck”), leaving you outside alone with the angry honey badger.

The U.S. Supreme Court, through its Filarsky v. Delia ruling handed down yesterday, just opened that door for you.

Of course, there are a few minor changes to the details.

Instead of the honey badger, it’s a § 1983 civil rights lawsuit, rather than the hobgoblin, it’s an appeals court in the Ninth Circuit, and in place of the bomb shelter, it’s the protection of qualified immunity.

Alright, I guess I should explain what actually happened.

Nicholas Delia, a firefighter employed by the City of Rialto, California, became ill while responding to a toxic spill in August 2006.

Under a doctor’s orders, Delia missed three weeks of work.

The city became suspicious of Delia’s extended absence, and hired private investigators to watch him.

The private investigators observed Delia buying building supplies (including several rolls of fiberglass insulation) from a home improvement store.

The city surmised that Delia wasn’t missing work because of illness, but to do construction on his home.

It then initiated a formal internal affairs investigation of Delia, and he was ordered to appear for an administrative investigation interview.

The city hired Steve Filarsky, an experienced employment lawyer who had previously represented the City in several investigations, to conduct the interview.

Delia brought his own lawyer along.

During the interview, Filarsky questioned Delia about the building supplies.

Delia acknowledged that he had purchased the supplies, but claimed that he had not yet done the work on his home.

During a break, Filarsky consulted with the state employees who were involved in the investigation, suggesting that they could verify Delia’s claim by asking him to produce the building supplies.

The state employees approved the plan.

When the interview resumed, Filarsky requested permission for one of the state employees to enter Delia’s home to view the supplies, to which Delia refused.

Filarsky then asked Delia if he would be willing to bring the materials out onto his lawn, so that Peel could observe them without entering his home, to which Delia again refused.

After this last refusal, Filarsky ordered him to produce the materials for inspection.

Delia’s attorney objected, claiming the order was a violation of the Fourth Amendment.

After it became clear that Filarsky and the state employees weren’t deterred, Delia’s attorney went completely apesh…well, he got pretty upset.

He started repeatedly threatening to sue everyone (and he singled out Filarsky by name), and that he was going to make “everybody… sweat it out as to whether or not they have individual liability.”

Despite these threats, Filarsky went forward and prepared the order, which the fire chief signed.

After the interview, two state employees followed Delia to his home, and waited in the car while Delia, his attorney, and a union representative went into the house and produced the materials.

The employees thanked Delia for showing them the materials, and then drove away.

True to his word, Delia’s attorney sued everyone.

On appeal to the Ninth Circuit, the court found that, although the actions of Filarsky and the state employees violated the Fourth Amendment, the protection of qualified immunity applied.

Except to Filarsky, since he wasn’t actually employed by the government.

As mentioned above, the Supreme Court unanimously reversed the court of appeals.

The opinion held that Filarsky, although he was only hired by the government to deal with this individual case, was “working for the government in pursuit of government objectives,” and thus entitled to the protection of qualified immunity.

The Court provided a detailed history lesson about how the common law principles of immunity were incorporated into the current doctrine, and that historically, the lines between government actor and private actor were very blurry.

The Court also talked about how it’s good policy to extend immunity to private actors such as Filarsky so that the government can attract the best and brightest to deal with situations such as Delia’s.

Fascinating stuff.

Though the ruling is surely welcomed by outside counsel periodically retained by various government bodies, it is certainly a huge relief to Filarsky.

After all, now he can stop “sweating it out” as to whether he has individual liability.