Nahmod Law

Certiorari Granted in Filarsky v. Delia: Private Attorney Immunity Under Section 1983


On September 27, 2011, the Supreme Court granted certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, which held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.

The Question Presented: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”


Qualified immunity is a well established affirmative defense to section 1983 damages liability that is afforded to state and local government officials and employees: they are protected, even where they in fact violated a plaintiff’s constitutional rights, so long as they did not violate clearly settled law as of the time of the constitutional violations. See generally NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2011)(CIVLIBLIT on Westlaw).

The major purpose of qualified immunity is to provide such defendants with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. Indeed, over the past few decades, as I’ve written and blogged about previously, the Supreme Court has to a considerable extent converted qualified immunity into the functional equivalent of absolute immunity, thereby providing even greater protection for state and local government officials and employees.

However, situations occasionally arise where private persons are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. They accordingly acted under color of law and can be held liable in damages. The question arises: are such private persons, suable under section 1983, entitled to the same qualified immunity?

Prior Supreme Court Decisions

Thus far, the answer has been no.  In Wyatt v. Cole, 504 U.S. 158 (1992), the Court held that private persons sued under section 1983 in connection with their use of allegedly unconstitutional state garnishment or prejudgment attachment statutes are not entitled to claim qualified immunity. However, the Court suggested that such persons might still be protected by an affirmative defense of reasonable good faith belief in the constitutionality of the statutes they used.

Thereafter, in Richardson v. McKnight, 521 U.S. 399 (1997), the Court held that prison guards employed by a private prison management firm are not protected by qualified immunity. Among other factors, the Court observed that it had found no conclusive evidence of a tradition of immunity for private parties carrying out prison management functions. In addition, the purposes of qualified immunity did not support qualified immunity protection for private prison guards: there were private sector incentives for constitutional compliance.

Significantly, the Court in Richardson emphasized that its holding did not necessarily apply to “a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close judicial supervision.”

Filarsky v. Delia

In Filarsky, the Ninth Circuit held (reluctantly, because it had to follow an earlier Ninth Circuit decision) that the defendant private attorney, who had worked with government employees in connection with an internal affairs investigation that gave rise to the present section 1983 litigation, was not entitled to claim qualified immunity even though the government employees themselves were protected here.

The limited nature of Richardson‘s holding has therefore been squarely placed before the Court: does Richardson apply in this kind of case as well, or are private attorneys working temporarily with government indeed protected by qualified immunity?


1. Note that a major difference between qualified immunity for government officials and an affirmative defense, for private persons, of reasonable good faith belief in constitutionality is the availability to government officials of interlocutory appeals from district court denials of defense qualified immunity motions for summary judgment.

2. If the Court in Filarsky turns out to be normatively concerned with fairness to private attorneys working temporarily with government, then the affirmative defense should be adequate, as I argued in The Emerging Section 1983 Private Party Defense, 26 Cardozo Law Review 81 (2004) (link is PDF). Qualified immunity protection is not necessary.

On the other hand, the Court could engage in an historical analysis and/or apply a functional approach and conclude that in this kind of case, private attorneys should be afforded full qualified immunity protection.

Written by snahmod

October 10, 2011 at 12:02 pm

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