Filarsky v. Delia
The Supreme Court ruled that a private attorney hired by a city to conduct a workplace investigation can seek qualified immunity from a civil rights lawsuit, just like a full-time city employee could.
The decision rejects the idea that immunity from lawsuits depends on whether someone works for the government full-time, permanent, or only temporarily — a distinction the Court found had no basis in the common-law history behind the civil rights law at issue.
“An uncertain immunity is little better than no immunity at all.”
Explaining why drawing fine lines between types of government workers undermines the purpose of immunity.
How it got here: A federal trial court granted qualified immunity to all defendants; the Ninth Circuit affirmed for city employees but denied immunity to Filarsky because he was a private attorney, prompting Supreme Court review.
The Case in Depth
What happened
A Rialto, California firefighter, Nicholas Delia, missed work after getting sick. Suspicious, the city hired investigators and then hired outside employment lawyer Steve Filarsky to question Delia about home-improvement purchases. When Delia refused to let officials view unused building materials, Filarsky had the fire chief order him to bring the materials outside. Delia sued Filarsky and city officials, claiming the order violated his constitutional rights.
The question before the Court
Can a private lawyer hired by a city to help with an internal investigation claim the same qualified immunity a government employee would have?
The Court's answer
Yes — the Court ruled that a private individual temporarily hired by the government to do its work can seek qualified immunity from a civil rights lawsuit just as a government employee could. The Court found that when Congress passed the civil rights law in 1871, the common law never distinguished between full-time public servants and private citizens who took on government duties on a temporary or part-time basis — both received the same legal protections.
Because that historical background is built into the civil rights law, and because the practical reasons for immunity (avoiding excessive caution, attracting skilled help, and preventing distracting lawsuits) apply just as strongly to temporary government helpers as to full-time employees, the Court held the Ninth Circuit was wrong to deny Filarsky immunity solely because he was outside counsel rather than a city employee.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Governments — especially small cities without large staffs — regularly hire outside professionals like lawyers, consultants, and investigators to do government work. This ruling means those hired professionals can defend themselves in civil rights lawsuits the same way a city's own employees could, making it easier for governments to recruit specialized outside help without exposing those workers to greater legal risk than their public-employee counterparts.
What changes now
The case returns to the Ninth Circuit, which must now decide whether Filarsky is actually entitled to qualified immunity — that is, whether he violated a constitutional right that was "clearly established" at the time, an issue the appeals court never reached because it had wrongly denied him the chance to make that argument at all. This is a final merits ruling on the narrow legal question of eligibility for immunity, not a final resolution of Delia's underlying lawsuit.
What this does not decide
The Court decided only that Filarsky is eligible to seek qualified immunity, not that he actually deserves it. Whether his conduct violated a "clearly established" constitutional right — the separate question that determines whether immunity actually applies — was left for the Ninth Circuit to decide on remand.
Concurrences and dissents
Concurrence — Justice Ginsburg
Justice Ginsburg agreed that Filarsky could seek qualified immunity but stressed that immunity can still be defeated if Filarsky knew or should have known his conduct violated clearly established law. She pointed to factual findings by the Ninth Circuit suggesting Delia's cooperation was coerced by threats of discipline or firing, and flagged several unresolved questions about whether ordering Delia to bring items outside his home to avoid a warrant, and threatening his job to induce compliance, violated clearly established rights.
Concurrence — Justice Sotomayor
Justice Sotomayor joined the Court's opinion but cautioned that not every private individual who does any work for the government automatically qualifies for immunity; each case must still be tested against the common-law and functional factors the Court described. She emphasized that Filarsky qualifies because he worked closely alongside supervised city employees, while leaving open how the test applies to differently situated private actors, such as independent special prosecutors.
How the Court got there
The legal reasoning, step by step
- The Court framed the question as whether the common law existing in 1871, when the civil rights statute was enacted, distinguished between full-time government employees and private citizens temporarily doing government work when it came to legal protection from lawsuits — because that common-law backdrop is read into the statute.
- Examining historical practice, the Court found that 19th-century government relied heavily on part-time or occasional workers — private lawyers acting as prosecutors, shopkeepers serving as postmasters, ferrymen acting as wharfmasters, and citizens deputized into a sheriff's posse — and the common law extended the same immunity to these temporary government helpers as to full-time officials.
- The Court then asked whether the modern justifications for immunity under the civil rights statute — avoiding excessive caution in public duties, attracting skilled outside talent, and preventing lawsuits from distracting people who work for the government — applied differently to temporary or part-time workers than to permanent employees, and concluded they did not; if anything, private individuals free to choose other work would be especially deterred from public service without equal protection.
- The Court considered two prior decisions that might have suggested otherwise. It found Wyatt v. Cole inapplicable because that case involved private parties pursuing their own ends with no real government connection, not someone doing government work. It read Richardson v. McKnight as a narrow decision limited to privately run prison companies operating with market-based incentives and little government supervision, unlike an individual investigator hired to do a single government task.
- Applying these principles to Filarsky, the Court concluded that because he was retained by the city to carry out an official investigation just as full-time employees like the fire chief and other officials had done, the common law provided no basis to deny him the same opportunity to seek qualified immunity that his co-defendants received.
Doctrinal impact
Cases affected by this decision
Distinguishes Wyatt v. Cole (504 U. S. 158)
Held inapplicable because it involved private parties with no government connection pursuing purely private goals.
Distinguishes Richardson v. McKnight (521 U. S. 399)
Treated as a narrow ruling limited to privately run prisons operating under market incentives, not individual government hires.