Government Attorney Qualified Immunity Under § 1983: Only for In-House Counsel?

Vol. 35 No. 3


Michael Kamprath is a Board Certified Florida construction attorney and the Section’s liaison to the ABA Young Lawyers Division. He is also active in the ABA Forum on the Construction Industry.

Oral arguments were presented at the Supreme Court on Tuesday, January 17, 2012, in Filarsky v. Delia (No. 10-1018). The question presented was whether a lawyer retained to work with government employees to conduct an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee.

Mr. Filarsky, a private attorney, was retained by the City of Rialto, California’s fire department to undertake an employment investigation of Mr. Delia. The city believed that Mr. Delia, a firefighter, was abusing his sick leave and had observed him purchase building materials while out on sick leave. During the course of the investigation, Mr. Delia was ordered to go to his house and remove the building materials purchased to show that they were not incorporated into the house. If Mr. Delia did that, the city stated it would drop the investigation. Mr. Delia obeyed the order and produced the materials on his lawn while fire department officials observed from their vehicle. Mr. Filarsky’s involvement in the procurement of the order was disputed at oral argument, but it is undisputed that Mr. Filarsky did not sign the order or observe the production of the building materials at Mr. Delia’s home. Mr. Delia sued the city, the Fire Department, various Fire Department officials, and Mr. Filarsky for violation of his constitutional rights under 42 U.S.C. § 1983. On summary judgment, the U.S. District Court for the Central District of California found that the defendants were entitled to qualified immunity because there was no violation of a clearly established constitutional right. The Ninth Circuit determined that there was no clearly established violation of a constitutional right and therefore affirmed as to the city, the Fire Department, and its officials but reversed as to Mr. Filarsky because it determined that categorically, as a private attorney, he was not entitled to qualified immunity. Although not entitled to qualified immunity, the Ninth Circuit stated Mr. Filarsky could still be liable for violations of the Fourth and Fourteenth Amendments if he acted as a government agent.

Filarsky appealed to the Supreme Court based on a circuit conflict and proffered a new test to determine whether a temporarily retained attorney should be subject to qualified immunity:

the test for immunity that is most consonant with historical practice is whether the attorney is the functional equivalent of a government employee based on (i) the nature of the advisory or representative role the attorney performs, (ii) the control exercised by and close coordination with the government employees or officials, (iii) the role that the attorney’s legal counsel plays in the execution of an essential governmental activity, . . . , and (iv) the immunity accorded to government employees performing the same role.

Petitioner’s brief at 34. The functional aspects of this test are based in the dissent by Justice Scalia in Richardson v. McKnight, 521 U.S. 399 (1997). Filarsky noted that the irony of the result in the Ninth Circuit is that it turns § 1983 on its head because, in a cause of action designed to hold governments accountable, the government employees and entities are dismissed while the only private party is left holding the bag. On the other hand, the respondent advocated for application of the test in that looks at both the history and the purposes that underlie qualified immunity.

The , in an amicus brief, asserted that Mr. Filarsky was entitled to qualified immunity based on the test and factors set forth in .

The filed an amicus brief in support of petitioner that focused on the widespread nature of services that private attorneys provide governmental entities and the potential impact that the Ninth Circuit’s decision could have on the availability of qualified counsel. The concluded that “[t]he loss of qualified immunity, however, would significantly impact the vital contributions that private attorneys make to effective government performance. On the other hand, ensuring qualified immunity would promote the strong public interest in the continuing representation of public entities by private counsel.”

At oral argument, Patricia A. Millett, on behalf of Mr. Filarsky, argued that private attorneys are entitled to the same immunity as public attorneys and proposed the new functional test. Justice Alito seemed concerned with the requirement for close coordination proposed by Mr. Filarsky and wondered whether the outcome should be the same if there is no close coordination. Justice Roberts questioned whether the proposed test gave enough assurance or breathing room for attorneys to act. Justice Sotomayor struggled with the facts of the case, seemed concerned that Mr. Filarsky might be the most culpable of the actors, and did not seem inclined to abandon the test. Justice Kagan speculated on the balance between policy and historic factors.

Nicole A. Saharsky, on behalf of the , argued that, when a private worker working side by side with a government worker is denied qualified immunity, it directly affects the ability of government employees to do their jobs. Justice Kagan raised the issue of market forces and their effect on whether qualified immunity should be afforded to private persons working for the government. In the market forces discussion, Justice Sotomayor noted that “there is a whole slew of unemployed lawyers who would be happy to take on any government service they can” and therefore questioned whether the absence of qualified immunity would chill the advice given by attorneys to their government clients because attorneys have independent fiduciary duties to their clients. In response, Ms. Saharsky maintained that the government lawyer faced the same dilemma, and they are entitled to qualified immunity.

Michael McGill argued on behalf of respondent that petitioner’s proposed test was unworkable, that the court should apply the test announced in , and under that test there was no historical basis for qualified immunity, nor did the purposes for qualified immunity support affording it to Mr. Filarsky here. Justice Alito followed up asking whether respondent was making a distinction between employees and private contractors, and Justice Scalia pressed respondent on the issue. Justice Breyer continued by asking if Abraham Lincoln would have qualified immunity if, in private practice, he were asked to prosecute a case. It appeared that Justice Alito, Justice Scalia, and Justice Breyer were having difficulty with the distinction between public and private attorneys performing the same function. During his argument, Mr. McGill attempted to focus the court on the lack of historical basis for immunity for a private attorney. In response, the Chief Justice noted that this case highlights “why the lawyer ought to have qualified immunity . . . [because] we don’t want him to be worried about the fact he might be sued.” Justice Ginsberg questioned the procedural posture and why there was not a cross appeal on the Ninth Circuit’s finding that ordering the production of the materials on the lawn was a clearly established violation. Respondent agreed with Justice Kagan when she stated that there is no historic basis for immunity and that lawyers only had a malice defense at common law because the notion of qualified immunity developed in 1970. To say that there is no historic basis means, in effect, that private people never get qualified immunity. Respondent also agreed with Justice Alito that these cases are a mix of history and policy and that absolute immunity has been recognized in situations where it did not exist in the common law. Respondent also agreed with Justice Scalia that the rule of malice applied to all lawyers at the common law.

On rebuttal, Ms. Millett emphasized the deterrence effect the Ninth Circuit’s decision may have because outside government counsel frequently work at cut rates or even pro bono and that, although there may be warm bodies to fill their seats, those warm bodies may not be the most qualified for the job—and the government needs skilled attorneys of a high caliber. Because the individual decision to take on a governmental client may be a marginal one because of discounted rates and other issues, the Ninth Circuit’s decision would further deter qualified attorneys from government service.

It is difficult to determine where the Court will come down on this issue, however; it is conceivable that it will abandon the historic purposes test for the functional approach presented by Justice Scalia in his dissent.


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