Article Legal Notes Kent J. Bullard

Filarsky v. Delia: An Unqualified Win For Qualified Immunity

Kent J. Bullard is a partner with the law firm of Greines, Martin, Stein & Richland LLP and can be reached at

City and other local government officials have long been targets of lawsuits brought under Section 1983, the federal civil rights statute that allows someone whose constitutional rights have been violated by a person acting on behalf of the government to sue that person for damages.1 An important shield against Section 1983 lawsuits is the doctrine of qualified immunity, which protects government defendants from liability as long as their conduct did not violate clearly established law.

Given the prevalence of both Section 1983 actions and cities’ use of private contractors, such as attorneys, to perform government functions, the issue of whether private contractors also enjoy qualified immunity has a potentially significant impact on all cities. Before 2012, however, the U.S. Supreme Court had provided only scant — and less than encouraging — guidance on this issue. That changed in April 2012 with the Supreme Court’s decision in the Filarsky v. Delia case.2 The court held in Filarsky that a private attorney who was retained by a city to assist in investigating a firefighter’s potential wrongdoing was entitled to seek the protection of qualified immunity. This bodes well for all cities that hire contract or temporary city attorneys and other workers to perform government functions.

Using Private Attorneys to Perform Government Functions

“In an era of ever-increasing fiscal consciousness brought on by financial constraints, local government agencies are constantly exploring methods of continuing to provide public services at their traditional level yet, at the same time, reducing if not stabilizing service costs.”3 This observation, made almost 30 years ago by Philip D. Kahn in Privatizing Municipal Legal Services, remains apt in the challenging financial circumstances most local government agencies face today. One tool that cities have used to continue providing services in a cost-effective and fiscally responsible manner is municipal outsourcing. Indeed, hundreds of cities in California contract out the position of city attorney to a private attorney or law firm.

In addition to the financial considerations that drive outsourcing, cities long have retained private attorneys on a temporary basis for a variety of reasons, including:

  • Limitations on in-house staff resources and time. Many smaller cities simply lack the legal staff to complete all needed tasks given the complex and ever-changing legal environment for public agencies, and even larger cities may lack sufficient legal staff for especially large tasks;
  • The need to secure specialized expertise that in-house attorneys for a city, whether small or large, may need for a particular matter or a limited time; and
  • The need to avoid actual or potential conflicts of interest and to secure independent legal opinions.

A city’s use of a private attorney with specialized experience in personnel matters and with particular expertise in conducting internal affairs investigations became the subject of the Filarsky case.4

Background on the Filarsky Case

In Filarsky, the Ninth Circuit Court of Appeals had earlier concluded that the firefighter’s Fourth Amendment right against an unreasonable search was violated during the internal affairs investigation. Recognizing, however, that the investigating conduct violated no clearly established law, the Ninth Circuit granted qualified immunity to all the individuals involved in conducting the investigation — except the private attorney retained to assist the city. The Ninth Circuit denied qualified immunity to him solely because he was not a permanent, full-time city employee.5

But the case did not end there. Aided by a lone friend-of-the-court brief from the League and the California State Association of Counties, the private attorney convinced the U.S. Supreme Court to hear his case.

The Supreme Court’s Opinion

Unanimously reversing the Ninth Circuit, the Supreme Court issued a decision that was very favorable for cities. Writing for the court, Chief Justice Roberts found no justification for distinguishing between government employees and private individuals temporarily retained by the government to carry out its work.6 The court first explained that when the civil rights laws were enacted in the 19th century, government was much smaller and the common law did not distinguish between public servants and private individuals engaged in public service for purposes of lawsuits stemming from carrying out government responsibilities.7

Even more important, the court concluded that the public policies underlying qualified immunity strongly favor immunity for private contractors performing government services. Affording immunity would:

  • Avoid “unwarranted timidity” in carrying out the public’s business; in Filarsky, the plaintiff’s attorney had expressly threatened suit against everyone involved in the investigation;
  • Make it less likely that the “most talented candidates will decline public engagements”;
  • Prevent private individuals from being “left holding the bag” for actions taken in conjunction with government employees who enjoy immunity; and
  • Prevent government employees who enjoy immunity from nevertheless becoming embroiled in ongoing litigation against the private contractor, for example, by being required to testify.8

The court also wanted to eliminate difficult problems of drawing distinctions that might ensue if immunity depended on whether an individual was categorized as a private contractor versus a government employee.9

Significantly, the court very narrowly construed and distinguished its two prior precedents denying qualified immunity for “private” individuals as being limited to their particular circumstances and inapplicable to the “typical case of an individual hired by the government to assist in carrying out its work.”10 The court also pointed out that the availability of qualified immunity should not depend on a city’s size or resources and whether it has a staff of full-time public employees to conduct its business or instead “must rely on the occasional services of private individuals.” As the opinion states: “There is no reason [the City of] Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for [the City of] New York.”11

How Filarsky Benefits Cities

The court’s opinion in the Filarsky case validates the reasons that cities have long retained private attorneys to perform government services — specifically, limited resources and the need for specialized expertise. Going forward and on a broader basis, the Supreme Court’s opinion avoids the pitfalls threatened by denying qualified immunity in Section 1983 cases to all private individuals hired to perform government services.

The court’s unwillingness to allow private attorneys to be “left holding the bag” significantly benefits not only private attorneys but also the cities that employ them. In a previous decision involving employees of a privately run prison facility, the court had disallowed immunity partially because indemnity and insurance could be used to prevent increasing costs.12 But if private attorneys could not avail themselves of qualified immunity, then insurance and indemnity costs would increase and ultimately be borne by the government entities that retain them — through paying higher rates to cover those additional costs. As Justice Scalia dissented in that prior case, there is no free lunch: “[A]s civil-rights claims increase, the cost of civil-rights insurance increases.”13

Moreover, to avoid the risk of expensive and burdensome lawsuits, some talented private attorneys may have ceased providing government services or performed them less fearlessly without qualified immunity. While less qualified or less experienced private attorneys may have stepped forward to offer their services, cities would have received less value for the money spent on private attorneys.

With the Filarsky opinion, however, cities need not bear additional costs and fees arising from increased indemnity obligations or insurance rates, receive less vigorous representation from private contract attorneys or use less competent private counsel solely because of the lack of qualified immunity. Instead, private attorneys carrying out public functions may assert qualified immunity. As a further boon to cities, the Filarsky opinion is not limited to the private-attorney context — it is now the norm in typical cases of contractors hired by the government to assist in carrying out its work.14 And Filarsky’s reach also expressly extends to temporary employment arrangements because, as the court said, immunity “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.”15


The Filarsky case is a huge win for cities that use contractors and temporary employees. The Supreme Court’s opinion allowing qualified immunity should prevent rate increases and ensure a better pool of available workers, and it provides legal protection against Section 1983 liability to those workers who provide needed services for cities.


[1] 42 U.S.C. § 1983.

[2] Filarsky v. Delia, 132 S. Ct. 1657 (2012).

[3] Philip D. Kahn, Privatizing Municipal Legal Services, 10 Local Government Studies, May/June 1984, at 1.

[4] Filarsky, 132 S. Ct. at 1666.

[5] Delia v. City of Rialto, 621 F.3d 1069, 1080-81 (9th Cir. 2010).

[6] Filarsky, 132 S. Ct. at 1661-68.

[7] Id. at 1663.

[8] Id. at 1665-66.

[9] Id. at 1666.

[10] Id. at 1667.

[11] Id. at 1668.

[12] Richardson v. McKnight, 521 U.S. 399, 410-11 (1997).

[13] Id. at 419 n.3 (Scalia, J., dissenting).

[14] Filarsky, 132 S. Ct. at 1666-67.

[15] Id. at 1659.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

This article appears in the December 2012 issue of Western City
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