©2012 Lou Reiter, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

Held: A private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit under §1983.

In 2006, Rialto, CA., Firefighter Delia became ill on the job.  He was ordered by his doctor to not work for three weeks.  The City became suspicious that he was abusing this sick time and hired a private investigator to follow him.  Delia was observed buying insulation from a store and took it home.  The City now believed that he was doing construction work while on sick status.

The City hired a private attorney, Steve Filarsky, to conduct its administrative investigation into this allegation of employee misconduct.  In conjunction with supervisors from the Fire Department, Filarsky ordered Delia in for an interview.  The Firefighter appeared with his attorney.  Delia admitted buying the insulation, but stated that he had not performed any work in his home.

To verify his contention, Attorney Filarsky ordered Delia to allow the Fire Department supervisors to enter his private home to determine whether the insulation had been used.  Delia, through his attorney, declined and refused to give consent.  Filarsky then produced a written order mandating that Delia bring any unused insulation outside his home for inspection by the supervisors.  Under repeated threats of suit by Delia’s attorney, Delia produced the insulation that indicated he had not performed any work.

Delia sued under § 1983.  The 9th Circuit granted all of the City employees qualified immunity, but denied that to Attorney Filarsky contending that he was a private person, not a City employee.

The Supreme Court reversed this decision based on “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… Common law principles of immunity were incorporated into §1983 and should not be abrogated absent clear legislative intent… Immunity 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 made note that its prior ruling on not allowing qualified immunity to prison guards employed by a private for-profit company was a different circumstance. [i]

The Court decision was a colorful history of governmental use of volunteer and part-time persons being called to perform governmental duties.  The Court noted “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.”  It went on to discuss the issues of posse comitatus and the individuals called upon to help Sheriffs were acting for the Sheriff.

The Court concluded that a person being asked to assist a government should be allowed to conduct this governmental business without “unwarranted timidity” and in a “decisive” manner.  Government should not be excluded from bringing in the most qualified person to assist them in their public duties.  “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 wrong-doing. There is no dispute that government employees performing such work are entitled to seek the protection of qualified immunity. The Court of Appeals rejected Filarsky’s claim to the protection accorded Wells, Bekker, and Peel (the City and Fire Service personnel) solely because he was not a permanent, full-time employee of the City. The common law, however, did not draw such distinctions, and we see no justification for doing so under §1983.  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 Mr. 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.”

While this was a unanimous decision of the Court, two Justices wrote additional opinions.  What is somewhat disturbing is their focus on whether the order by Filarsky was Constitutional.  These opinions seem to differ somewhat from the provisions commonly used by public employers, specifically public safety, for compelled statements during administrative investigations.  What these seem to indicate is that they believed this might be unconstitutional.  But, the investigation was never criminal at any time.

This case appears to ensure that governmental agency volunteers, part-time employees, and Reserve Officers would be accorded the protections of qualified immunity under § 1983.  Contract medical services personnel in detention facilities probably would also be covered.  This case should also provide similar protections to personnel from agencies asked to perform services for another agency, such as an Internal Affairs investigation by a State agency or larger adjacent agency.

It would be best practice to always have someone from the involved agency be a part of the investigation.  In the Delia case, supervisors of the Rialto Fire Department were always involved.  This might be a significant issue should a public employee be compelled to cooperate and give a statement that should be protected under Garrity and Broderick.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] Richardson v. McKnight, 521 U. S. 399

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