FILARSKY v. DELIA
No. 10-1018
Supreme Court of the United States
Argued January 17, 2012—Decided April 17, 2012
566 U.S. 377
Patricia A. Millett argued the cause for petitioner. With her on the briefs were James E. Sherry, James E. Tysse, Barry Chasnoff, Jon H. Tisdale, Jennifer Calderon, and Amit Kurlekar.
Nicole A. Saharsky argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Srinivasan, Barbara L. Herwig, and Teal Luthy Miller.
Michael A. McGill argued the cause for respondent. With him on the brief were Dieter C. Dammeier and Michael A. Morguess.*
*Briefs of amici curiae urging reversal were filed for the State of Kansas et al. by Derek Schmidt, Attorney General of Kansas, Stephen R. McAllister, Solicitor General, and Kristafer Ailslieger, Deputy Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Luther Strange of Alabama, John J. Burns of Alaska, Tom Horne of Arizona, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Irvin B. Nathan of the District of Columbia, Samuel S. Olens of Georgia, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Tom Miller of Iowa, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, William J. Schneider of Maine, Bill Schuette of Michigan, Chris Koster of Missouri, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, E. Scott Pruitt of Oklahoma, John R. Kroger of Oregon, Linda L. Kelly of Pennsylvania, Robert E.
Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae urging affirmance.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Section 1983 provides a cause of action against state actors who violate an individual‘s rights under federal law.
I
A
Nicholas Delia, a firefighter employed by the city of Rialto, California (or City), 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 a private investigation firm to conduct surveillance on him. The private investigators observed Delia purchasing building supplies—including several rolls of fiberglass insulation—from a home improvement store. The City surmised that Delia was missing work to
Delia was ordered to appear for an administrative investigation interview. The City hired Steve Filarsky to conduct the interview. Filarsky was an experienced employment lawyer who had previously represented the City in several investigations. Delia and his attorney attended the interview, along with Filarsky and two fire department officials, Mike Peel and Frank Bekker. 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 met with Peel, Bekker, and Fire Chief Stephen Wells. Filarsky proposed resolving the investigation by verifying Delia‘s claim that he had not done any work on his home. To do so, Filarsky recommended asking Delia to produce the building materials. Chief Wells approved the plan.
When the meeting resumed, Filarsky requested permission for Peel to enter Delia‘s home to view the materials. On the advice of counsel, 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. Delia again refused to consent. Unable to obtain Delia‘s cooperation, Filarsky ordered him to produce the materials for inspection.
Delia‘s counsel objected to the order, asserting that it would violate the Fourth Amendment. When that objection proved unavailing, Delia‘s counsel threatened to sue the City. He went on to tell Filarsky that “[w]e might quite possibly find a way to figure if we can name you Mr. Filarsky.... If you want to take that chance, you go right ahead.” App. 131–132. The threat was repeated over and over: “[E]verybody is going to get named, and they are going to sweat it out as to whether or not they have individual liability....” “[Y]ou order him and you will be named and that is not an
As soon as the interview concluded, Peel and Bekker followed Delia to his home. Once there, Delia, his attorney, and a union representative went into Delia‘s house, brought out the four rolls of insulation, and placed them on Delia‘s lawn. Peel and Bekker, who remained in their car during this process, thanked Delia for showing them the insulation and drove off.
B
Delia brought an action under
The Court of Appeals for the Ninth Circuit affirmed with respect to all defendants except Filarsky. The Court of Appeals concluded that the order violated the Fourth Amendment, but agreed with the District Court that Delia “ha[d] not demonstrated that a constitutional right was clearly established as of the date of Chief Wells‘s order, such that defendants would have known that their actions were unlaw-
Filarsky filed a petition for certiorari, which we granted. 564 U. S. 1066 (2011).
II
Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights “under color” of state law.
In this case, there is no dispute that qualified immunity is available for the sort of investigative activities at issue. See Pearson v. Callahan, 555 U. S. 223, 243–244 (2009). The Court of Appeals granted this protection to Chief Wells, Peel, and Bekker, but denied it to Filarsky, because he was not a public employee but was instead a private individual “retained by the City to participate in internal affairs investigations.” 621 F. 3d, at 1079–1080. In determining whether this distinction is valid, we look to the “general principles of tort immunities and defenses” applicable at common law, and the reasons we have afforded protection from suit under § 1983. Imbler, supra, at 418.
A
Under our precedent, the inquiry begins with the common law as it existed when Congress passed § 1983 in 1871. Tower v. Glover, 467 U. S. 914, 920 (1984). Understanding the protections the common law afforded to those exercising government power in 1871 requires an appreciation of the nature of government at that time. In the mid-19th century, government was smaller in both size and reach. It had fewer responsibilities, and operated primarily at the local level. Local governments faced tight budget constraints, and generally had neither the need nor the ability to maintain an established bureaucracy staffed by professionals. See B. Campbell, The Growth of American Government: Governance From the Cleveland Era to the Present 14–16, 20–21 (1995); id., at 20 (noting that in the 1880‘s “[t]he governor‘s office staff in Wisconsin ... totaled five workers if we count the lieutenant governor and the janitor“).
As one commentator has observed, there was at that time “no very clear conception of a professional office, that is, an office the incumbent of which devotes his entire time to the discharge of public functions, who has no other occupa-
Private citizens were actively involved in government work, especially where the work most directly touched the lives of the people. It was not unusual, for example, to see the owner of the local general store step behind a window in his shop to don his postman‘s hat. See, e. g., Stole Stamps, Maysville, Ky., The Evening Bulletin, p. 1, Sept. 25, 1895 (reporting that “[t]he postoffice and general store at Mount Hope was broken into,” resulting in the loss of $400 worth of cutlery and stamps). Nor would it have been a surprise to find, on a trip to the docks, the local ferryman collecting harbor fees as public wharfmaster. See 3 E. Johnson, A History of Kentucky and Kentuckians 1346 (1912).
Even such a core government activity as criminal prosecution was often carried out by a mixture of public employees and private individuals temporarily serving the public. At the time § 1983 was enacted, private lawyers were regularly engaged to conduct criminal prosecutions on behalf of the State. See, e. g., Commonwealth v. Gibbs, 70 Mass. 146 (1855); White v. Polk County, 17 Iowa 413 (1864). Abraham
This mixture of public responsibility and private pursuits extended even to the highest levels of government. Until the position became full time in 1853, for example, the Attorney General of the United States was expected to and did maintain an active private law practice. To cite a notable illustration, in Hayburn‘s Case, 2 Dall. 409 (1792), the first Attorney General, Edmund Randolph, sought a writ of mandamus from this Court to compel a lower court to hear William Hayburn‘s petition to be put on the pension list. When this Court did not allow the Attorney General to seek the writ in his official capacity, Randolph readily solved the problem by arguing the case as Hayburn‘s private lawyer. Ibid.; see also Letter from Edmund Randolph to James Madison (Aug. 12, 1792), reprinted in 14 The Papers of James Madison 348, 349 (R. Rutland, T. Mason, R. Brugger, J. Sisson, & F. Teute eds. 1983); Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L. J. 561, 598–599, n. 121, 619.
The common law also extended certain protections to individuals engaged in law enforcement activities, such as sheriffs and constables. At the time § 1983 was enacted, however, “[t]he line between public and private policing was frequently hazy. Private detectives and privately employed patrol personnel often were publicly appointed as special policemen, and the means and objects of detective work, in particular, made it difficult to distinguish between those on the public payroll and private detectives.” Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1210 (1999) (footnote and internal quotation marks omitted). The protections
Sheriffs executing a warrant were empowered by the common law to enlist the aid of the able-bodied men of the community in doing so. See 1 W. Blackstone, Commentaries on the Laws of England 332 (1765); In re Quarles, 158 U. S. 532, 535 (1895). While serving as part of this “posse comitatus,” a private individual had the same authority as the sheriff, and was protected to the same extent. See, e. g., Robinson v. State, 93 Ga. 77, 83, 18 S. E. 1018, 1019 (1893) (“A member of a posse comitatus summoned by the sheriff to aid in the execution of a warrant for [a] felony in the sheriff‘s hands, is entitled to the same protection in the discharge of his duties as the sheriff himself“); State v. Mooring, 115 N. C. 709, 710–711, 20 S. E. 182 (1894) (considering it “well settled by the Courts” that a sheriff may break open the doors of a house to execute a search warrant and that “if he act in good faith in doing so, both he and his posse comitatus will be protected“); North Carolina v. Gosnell, 74 F. 734, 738–739 (CC WDNC 1896) (“Both judicial and ministerial officers, in the execution of the duties of their office, are under the strong protection of the law; and their legally summoned assistants, for such time as in service, are officers of the law“); Reed v. Rice, 25 Ky. 44, 46–47 (App. 1829) (private individuals summoned by a constable to execute a search warrant were protected from a suit based on the invalidity of the warrant).
Indeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary
We read § 1983 “in harmony with general principles of tort immunities and defenses.” Imbler, 424 U. S., at 418. And we “proceed[] on the assumption that common-law principles of immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so.” Pulliam v. Allen, 466 U. S. 522, 529 (1984). Under this assumption, immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.
B
Nothing about the reasons we have given for recognizing immunity under § 1983 counsels against carrying forward the common-law rule. As we have explained, such immunity “protect[s] government‘s ability to perform its traditional functions.” Wyatt v. Cole, 504 U. S. 158, 167 (1992). It does so by helping to avoid “unwarranted timidity” in perform-
We have called the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public‘s business “the most important special government immunity-producing concern.” Id., at 409. Ensuring that those who serve the government do so “with the decisiveness and the judgment required by the public good,” Scheuer v. Rhodes, 416 U. S. 232, 240 (1974), is of vital importance regardless whether the individual sued as a state actor works full time or on some other basis.
Affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to “‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.‘” Richardson, supra, at 408 (quoting Wyatt, supra, at 167). The government‘s need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals. This case is a good example: Filarsky had 29 years of specialized experience as an attorney in labor, employment, and personnel matters, with particular expertise in conducting internal affairs investigations. App. to Pet. for Cert. 59, 89; App. 156. The City of Rialto certainly had no permanent employee with anything approaching those qualifications. To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work—work that will not expose them to liability for government actions. This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity enjoyed by their public employee counterparts.
The public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits is also implicated when individuals other than permanent government employees discharge these duties. See Richardson, supra, at 411. Not only will such individuals’ performance of any ongoing government responsibilities suffer from the distraction of lawsuits, but such distractions will also often affect any public employees with whom they work by embroiling those employees in litigation. This case is again a good example: If the suit against Filarsky moves forward, it is highly likely that Chief Wells, Bekker, and Peel will all be required to testify, given their roles in the dispute. Allowing suit under § 1983 against private individuals assisting the government will substantially undermine an important reason immunity is accorded public employees in the first place.
Distinguishing among those who carry out the public‘s business based on the nature of their particular relationship with the government also creates significant line-drawing problems. It is unclear, for example, how Filarsky would be categorized if he regularly spent half his time working for the City, or worked exclusively on one City project for an entire year. See Tr. of Oral Arg. 34–36. Such questions deprive state actors of the ability to “reasonably anticipate
III
Our decisions in Wyatt v. Cole, supra, and Richardson v. McKnight, supra, are not to the contrary. In Wyatt, we held that individuals who used a state replevin law to compel the local sheriff to seize disputed property from a former business partner were not entitled to seek qualified immunity. Cf. Lugar, 457 U. S. 922 (holding that an individual who uses a state replevin, garnishment, or attachment statute later declared to be unconstitutional acts under color of state law for purposes of § 1983). We explained that the reasons underlying recognition of qualified immunity did not support its extension to individuals who had no connection to government and pursued purely private ends. Because such individuals “hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good,” we concluded that extending immunity to them would “have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service.” 504 U. S., at 168.
Wyatt is plainly not implicated by the circumstances of this case. Unlike the defendants in Wyatt, who were using the mechanisms of government to achieve their own ends, individuals working for the government in pursuit of government objectives are “principally concerned with enhancing the public good.” Ibid. Whether such individuals have assurance that they will be able to seek protection if sued under § 1983 directly affects the government‘s ability to achieve its objectives through their public service. Put sim-
In Richardson, we considered whether guards employed by a privately run prison facility could seek the protection of qualified immunity. Although the Court had previously determined that public-employee prison guards were entitled to qualified immunity, see Procunier v. Navarette, 434 U. S. 555 (1978), it determined that prison guards employed by a private company and working in a privately run prison facility did not enjoy the same protection. We explained that the various incentives characteristic of the private market in that case ensured that the guards would not perform their public duties with unwarranted timidity or be deterred from entering that line of work. 521 U. S., at 410–411.
Richardson was a self-consciously “narrow[]” decision. Id., at 413 (“[W]e have answered the immunity question narrowly, in the context in which it arose“). The Court made clear that its holding was not meant to foreclose all claims of immunity by private individuals. Ibid. Instead, the Court emphasized that the particular circumstances of that case—“a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms“—combined sufficiently to mitigate the concerns underlying recognition of governmental immunity under § 1983. Ibid. Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work.
*
*
*
A straightforward application of the rule set out above is sufficient to resolve this case. Though not a public employee, Filarsky was retained by the City to assist in conducting an official investigation into potential wrongdoing. There is no dispute that government employees performing
New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and so must rely on the occasional services of private individuals such as Filarsky. There is no reason Rialto‘s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.
In light of the foregoing, the judgment of the Court of Appeals denying qualified immunity to Filarsky is reversed.
It is so ordered.
JUSTICE GINSBURG, concurring.
The Court addresses a sole question in this case: Is a private attorney retained by a municipality to investigate a personnel matter eligible for qualified immunity in a suit under
Filarsky was retained by the City of Rialto to investigate whether city firefighter Delia was taking time off from work under the false pretense of a disabling physical condition.
Following Filarsky‘s advice, Fire Chief Wells ordered Delia to bring the insulation out of his house and place the rolls on his lawn for inspection. App. 158. Filarsky recommended this course, the Ninth Circuit observed, mindful that “an individual does not have an expectation of privacy in items exposed to the public, thereby eliminating the need for a search warrant.” 621 F. 3d, at 1077. Delia complied with Chief Wells‘s order by producing the rolls, all of them unused, App. 78, 85, after which the investigation into the legitimacy of Delia‘s absence from work apparently ended.
In explaining why the individual defendants other than Filarsky were entitled to summary judgment on their qualified immunity pleas, the Ninth Circuit stated that “no ... threat to [Delia‘s] employment” attended Fire Chief Wells‘s order. 621 F. 3d, at 1079. The District Court similarly stated that “Delia was not threatened with insubordination or termination if he did not comply with [the] order.” App. to Pet. for Cert. 48.
These statements are at odds with the facts, as recounted by the Court of Appeals. “At the onset of the interview,” the Ninth Circuit stressed, “Filarsky warned Delia that he was obligated to fully cooperate,” and that “[i]f at any time it is deemed you are not cooperating then you can be held to be insubordinate and subject to disciplinary action, up to and including termination.” 621 F. 3d, at 1072 (internal quota-
In further proceedings upon return of this case to the Court of Appeals, these questions bear attention. First, if it is “clearly established,” as the Ninth Circuit thought it was, that “the warrantless search of a home is presumptively unreasonable,” id., at 1075, and that a well-trained investigating officer would so comprehend,1 may an official circumvent the warrant requirement by ordering the person under investigation to cart his personal property out of the house for inspection?2 And if it is “clearly established” that an employee may not be fired for exercising a constitutional right, see id., at 1079,3 is it not equally plain that discipline or discharge may not be threatened to induce surrender of such a right?
In short, the Court has responded appropriately to the question tendered for our review, but the Circuit‘s law will
JUSTICE SOTOMAYOR, concurring.
The Court of Appeals denied qualified immunity to Filarsky solely because, as retained outside counsel, he was not a formal employee of the city of Rialto. I agree with and join today‘s opinion holding that this distinction is not a sound basis on which to deny immunity.
I add only that it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under
Thus in Richardson v. McKnight, 521 U. S. 399 (1997), we denied qualified immunity to prison guards who were privately employed, despite their quintessentially public function. We did so because we found “no special reasons significantly favoring an extension of governmental immunity” in that context. Id., at 412. We left open, however, the question whether immunity would be appropriate for “a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision.” Id., at 413.
Filarsky, supported by the United States as amicus curiae, contends that he fits into this coda because he worked in close coordination with and under the supervision of city employees. Whether Filarsky was supervised by those employees, and did not himself do the supervising, is unclear. But there is no doubt that Filarsky worked alongside the
This does not mean that a private individual may assert qualified immunity only when working in close coordination with government employees. For example, Richardson‘s suggestion that immunity is also appropriate for individuals “serving as an adjunct to government in an essential governmental activity,” 521 U. S., at 413, would seem to encompass modern-day special prosecutors and comparable individuals hired for their independence. There may yet be other circumstances in which immunity is warranted for private actors. The point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law.