Filarsky v. Delia

Whether a private attorney retained by local government to conduct an investigation is precluded from asserting qualified immunity solely because of his status as a private lawyer rather than a government employee.

Petition, a private attorney, was retained by the City of Rialto to conduct an internal investigation of one of Respondent firefighter. During the course of the investigation Petitioner counseled the Fire Department Chiefs to take actions that resulted in violation of Respondent’s Fourth Amendment rights. This included coercing Respondent with threat of sanctions and termination of his firefighter position in order to compel Respondent to enter his own home and retrieve items from the home and display them on his front lawn so that city officials could see them without obtaining a warrant. The District Court granted summary judgment to all defendants. On appeal, the Ninth Circuit found that Respondent’s Fourth Amendment rights were violated. However, because the right was not clearly established at the time of the constitutional violation, the Court affirmed the districts courts order granting qualified immunity to all government employee defendants, but denied qualified immunity for Petitioner.

Petitioner argues that even though a temporary employee of the city government, he was the functional equivalent of a permanent government employee. Petitioner argues that the nature of the role performed or the service provided, the close supervision of or coordination with governmental officials, and the immunity that would have attached to government employees performing the same essential governmental task are factors that the Court’s decision for eligibility of immunity should turn on. Petitioner asserts that he is entitled to qualified immunity because he worked in close coordination with government officials and that in his role as a retained counsel he performed the same tasks as an in-house government lawyer. Furthermore, Petitioner argues that by not extending qualified immunity to attorneys retained by local governments, the increased risk of liability for private attorneys would deprive local governments of critically needed, affordable legal advice.