Teflon Coating of Qualified Immunity for Temporary Government Employees Under Section 1983?

The recent unanimous U.S. Supreme Court opinion, Filarsky v. Delia, held that private attorneys representing the government may enjoy qualified immunity from suit. Stephen A. Mesi, Deputy Attorney General in the California Department of Justice, discusses the Supreme Court's latest word on Section 1983 immunity.

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What do Abraham Lincoln, John Marshall, and Daniel Webster have in common? All represented the government at some point in their private legal careers. The recent unanimous U.S. Supreme Court opinion, Filarsky v. Delia [an enhanced version of this opinion is available to lexis.com subscribers], held that private attorneys representing the government may enjoy qualified immunity from suit. Stephen A. Mesi, Deputy Attorney General in the California Department of Justice, discusses the U.S. Supreme Court's latest word on Section 1983 immunity.

Facts

Delia, a firefighter for the City of Rialto, California, missed three weeks of work after he responded to a toxic spill and became ill. The City became suspicious of Delia's extended leave and hired a private investigator to conduct surveillance on him. After Delia was filmed buying fiberglass insulation and building supplies from a home improvement store, the City began a formal internal affairs investigation of him. It hired local employment attorney Filarsky to assist in the investigation and conduct an administrative interrogation of Delia. Delia acknowledged buying the supplies, but denied having done any work on his home. To verify Delia's claim, Filarsky asked Delia to let a fire department official enter his home and see the unused materials. Delia refused. After consulting with the Rialto City Attorney, Filarsky drafted an order, signed by the fire chief, requiring Delia to produce the unused materials outside his home. Delia's attorney asserted that the order violated Delia's Fourth Amendment rights and threatened a civil rights suit against the City, Filarsky, and several other individuals. As soon as the interview concluded, two fire officials followed Delia home, where he complied with the order and brought the insulation rolls outside. The City closed its investigation.

Delia sued the City, its fire chief, other fire officials, and Filarsky under 42 U.S.C. 1983 [an annotated version of this statute is available to lexis.com subscribers] in federal court, claiming he had been subjected to a warrantless search. The district court granted summary judgment against all individual defendants, finding that they were protected by qualified immunity for their actions. The Ninth Circuit concluded that Delia's Fourth Amendment rights had been violated, but that these rights were not clearly established at the time of the violation. It affirmed the district court's decision in favor of all individuals except Filarsky. Because Filarsky was a private attorney, not a City employee, he was not entitled to the qualified immunity defense.

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Stephen A. Mesi is a Deputy Attorney General in the California Department of Justice Employment & Administrative Mandate (EAM) section. He represents governmental entities and managers in employment litigation. He co-wrote and recently updated Chapter 14 of California Public Sector Employment Law (Matthew Bender). He is a graduate of USC and Loyola Law School and currently serves as President of the Italian-American Lawyers of Los Angeles.

[NOTE: This article does not necessarily represent the views of the Attorney General of California or the California Department of Justice.]