Vol 27 No. 10 – Contract Attorneys Working For the Public Sector Can Ask For Qualified Immunity


On April 17, 2012, the United States Supreme Court, in a unanimous decision in the case ofFilarsky v. Delia, held that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983.   That means that various persons, including private attorneys, who represent the public sector and are sued for the actions they took, can now petition the court for qualified immunity from civil liability in the same manner as attorneys who are employees of the public sector.


Delia was a City of Rialto firefighter who was being investigated by the City for alleged sick leave abuse.  He had been observed buying building supplies while off on sick leave, but denied doing any work on his home while he was, supposedly, ill.  During his interview, conducted by a private attorney, Steven Filarsky who was retained to conduct a personnel investigation, Delia was asked to allow a fire department official to enter his home and view the unused purchased items. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. That prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials.

Delia ultimately filed suit, under 42 U. S. C. §1983 against the City, the Fire Department, Filarsky and others, alleging violations of his 4th and 14th Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified im­munity. The Court of Appeals for the Ninth Circuit 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 U. S. Supreme Court accepted the case for review.

The Supreme Court stated that, “in determining whether the Court of Appeals made a valid dis­tinction between City employees and Filarsky for qualified immunity purposes, this Court looks to the general principles of tort immunities and defenses applicable at common law, and the reasons the Court has afforded protection from suit under §1983.   The common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibili­ties.”

As such, said the Court, “(i)mmunity 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 held that one reason for extending qualified immunity to non-employees working for the government is the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business – which has been called “the most important special government im­munity-producing concern.”

Additionally, said the Court, “affording immunity to those acting on the govern­ment’s behalf serves to ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.  The government, in need of specialized knowledge or ex­pertise, may look outside its permanent workforce to secure the ser­vices of private individuals. But 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.”


The common concern of persons from the private sector, retained to assist a public entity, was that they could be sued as a result of the work they performed.  As a result, cities and counties were frequently asked, by those persons (e.g. police psychologist, IA investigator, background investigator, legal counsel) to provide indemnification in case of a lawsuit.  In most instances that request was denied and they needed to secure errors and omissions insurance on their own.

This decision should enable more, highly qualified, individuals to be willing to contract with a public agency, since the fear of “hanging out alone” appears to have been removed.   As the Supreme Court stated, “affording immunity to those acting on the govern­ment’s behalf serves to ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.”

As in all matters involving the interpretation and/or application of the law, it is important to seek our advice and guidance from your agency’s attorney.  If you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.

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