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U.S. Supreme Court Extends Qualified Immunity To Outside Attorneys Temporarily Retained By Public Entities To Conduct Workplace Investigations

On April 17, 2012, a unanimous U.S. Supreme Court in Filarsky v. Delia held that an outside attorney temporarily retained by a public entity to conduct an internal workplace investigation is entitled to qualified immunity from a §1983 lawsuit. 

The case involved an internal affairs investigation of City of Rialto firefighter Nicholas Delia by an outside attorney hired by the City of Rialto Fire Department.  Delia brought a §1983 lawsuit against the City, several fire department managers involved in the investigation, and the outside attorney.

The trial court had held that the outside attorney instigated an unconstitutional search by requiring Delia to bring personal construction material from inside his house to his lawn for inspection by a supervisor, and the question for the Supreme Court was whether an outside attorney working for the government is entitled to qualified immunity.  The Supreme Court said the answer was yes.

This case is significant for California public agencies because agencies may retain an outside attorney to conduct an investigation without worrying about their own employees suing the outside attorney.  Qualified immunity will protect the outside attorneys just as it protects government employees.  In addition, the Supreme Court’s decision encourages outside consultants to continue serving public agencies without fear of liability.

In today’s economy, outside consultants perform many of the specialized services upon which government depends, and the Court’s decision acknowledges and encourages the importance of this role.

Underlying Facts

The case involved an unconstitutional search conducted during an internal affairs investigation by the City of Rialto Fire Department of its firefighter Nicholas Delia. 

Delia had become ill while responding to a toxic spill in August 2006.  Under a doctor’s orders, Delia missed three weeks of work.  After becoming suspicious of Delia’s extended absence, the City hired a private investigation firm to follow Delia.  The firm observed Delia purchasing building supplies (several rolls of insulation) while still on medical leave.

The City initiated an internal affairs investigation and retained attorney Steve Filarsky to conduct it.  Filarsky had specialized experience in labor, employment, and personnel matters, had “particular expertise in conducting internal affairs investigations.”  Filarsky had in fact previously represented the City in several investigations.

Filarsky interviewed Delia, who was accompanied by his attorney.  Rialto Fire Chief Stephen Wells and Battalion Chiefs Mike Peel and Frank Bekker also attended.

During the interview, Filarsky asked Delia about the building supplies, and Delia acknowledged purchasing them but claimed he had not yet done the work on his home.  Filarsky requested permission for Battalion Chief Mike Peel to enter Delia’s home to view the unopened supplies.  On advice of counsel, Delia refused.

Filarsky then asked Delia if he would be willing to bring the material out onto his lawn so that Battalion Chief Peel could observe it without entering Delia’s home.  On advice of counsel, Delia refused.  Filarsky then ordered Delia to produce the material, and Delia’s counsel objected based on the Fourth Amendment.

Filarsky then prepared a written order, signed by Chief Peel, directing Delia to produce the material.  When the interview concluded, Battalion Chiefs Peel and Beeker followed Delia to his home in their car.  Delia brought the insulation out of his house and placed in on the yard.  The Battalion Chiefs, who remained in their car during the process, thanked Delia for showing them the insulation and drove away.

Delia then brought an action under 42 U.S.C. §1983 against several entities and persons, including Fire Chief Wells, Battalion Chiefs Peel and Bekker, and attorney Filarsky.

The Ninth Circuit Opinion

The Ninth Circuit held that the order to Delia to produce the insulation had violated the Fourth Amendment.  Nevertheless, the appellate court affirmed the district court’s grant of summary judgment to individual defendants Chief Wells and Battalion Chiefs Peel and Bekker based on the qualified immunity doctrine. 

Under the qualified immunity doctrine, government employees are protected from liability under §1983 for conducting an unlawful search if, at the time of the search, its unlawfulness is not “clearly established.”

The Ninth Circuit agreed with the district court that Delia had not demonstrated that the constitutional violation had been “clearly established as of the date of Chief Well’s order, such that defendants would have known that their actions were unlawful.” 

The Ninth Circuit did not grant summary judgment to attorney Filarsky.  The appellate court held that it was bound by prior circuit precedent holding that a private attorney was not entitled to qualified immunity.

The Supreme Court’s Holding

The Supreme Court unanimously reversed the Ninth Circuit.  The Court held that the qualified immunity doctrine protects private individuals like Filarsky who are hired by the government to do its work on something other than a permanent or full-time basis.

The Court’s decision noted the importance of the role that specialized consultants play in today’s government and of the need to encourage such consultants to continue their public service.

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 services.  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.

The Court held that extending qualified immunity to private parties will also permit government employees to perform their own duties free from the distractions that accompany even routine lawsuits against private individuals.

Not only will [government employees’] 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 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.

A Cautionary Note

The Ninth Circuit held that the order to Delia to bring the insulation onto his lawn was a warrantless search that violated the Fourth Amendment.  The Court held, however, that the unconstitutionality of the search was not “clearly established” at the time Chief Wells issued his order.  Because the constitutional violation was not clearly established, qualified immunity applied.  But what if this situation occurred today? 

The Ninth Circuit noted that, at the time, case law was unsettled regarding the propriety of Chief’s Wells order.  Today, post-Filarsky v. Delia, a government employee or outside consultant would be hard-pressed to make the same argument. 

As this case shows, professionals conducting workplace investigations for public entity employers should be familiar with Fourth Amendment case law and ensure that all orders will pass constitutional muster.