Filarsky v. Delia

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FILARSKY v. DELIA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–1018. Argued January 17, 2012—Decided April 17, 2012

Respondent Delia, a firefighter employed by the City of Rialto, Califor-

nia, missed work after becoming ill on the job. Suspicious of Delia’s

extended absence, the City hired a private investigation firm to con-

duct surveillance on him. When Delia was seen buying fiberglass in-

sulation and other building supplies, the City initiated an internal af-

fairs investigation. It hired petitioner Filarsky, a private attorney, to

interview Delia. At the interview, which Delia’s attorney and two

fire department officials also attended, Delia acknowledged buying

the supplies, but denied having done any work on his home. To veri-

fy Delia’s claim, Filarsky asked Delia to allow a fire department offi-

cial to enter his home and view the unused materials. When Delia

refused, Filarsky ordered him to bring the materials out of his home

for the official to see. This prompted Delia’s attorney to threaten a

civil rights action against the City and Filarsky. Nonetheless, after

the interview concluded, officials followed Delia to his home, where

he produced the materials.

Delia brought an action under 42 U. S. C. §1983 against the City,

the Fire Department, Filarsky, and other individuals, alleging that

the order to produce the building materials violated his Fourth and

Fourteenth Amendment rights. The District Court granted summary

judgment to the individual defendants on the basis of qualified im-

munity. The Court of Appeals for the Ninth Circuit affirmed with re-

spect to all individual defendants except Filarsky, concluding that he

was not entitled to seek qualified immunity because he was a private

attorney, not a City employee.

Held: A private individual temporarily retained by the government to

carry out its work is entitled to seek qualified immunity from suit

under §1983. Pp. 4−16.

2 FILARSKY v. DELIA

Syllabus

(a) In determining whether the Court of Appeals made a valid dis-

tinction between City employees and Filarsky for qualified immunity

purposes, this Court looks to the general principles of tort immunities

and defenses applicable at common law, and the reasons the Court

has afforded protection from suit under §1983. See Imbler v. Pacht-

man, 424 U. S. 409, 418. 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 responsibili-

ties. Government at that time was smaller in both size and reach,

had fewer responsibilities, and operated primarily at the local level.

Government work was carried out to a significant extent by individ-

uals who did not devote all their time to public duties, but instead pur-

sued private callings as well. In according protection from suit to in-

dividuals doing the government’s work, the common law did not draw

distinctions based on the nature of a worker’s engagement with the

government. Indeed, examples of individuals receiving immunity for

actions taken while engaged in public service on a temporary or occa-

sional basis are as varied as the reach of government itself. Common

law principles of immunity were incorporated into §1983 and should

not be abrogated absent clear legislative intent. See Pulliam v. Al-

len, 466 U. S. 522, 529. 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.

Pp. 4–11.

(b) Nothing about the reasons this Court has given for recognizing

immunity under §1983 counsels against carrying forward the com-

mon law rule. First, the government interest in avoiding “unwarranted

timidity” on the part of those engaged in the public’s business—

which has been called “the most important special government im-

munity-producing concern,” Richardson v. McKnight, 521 U. S. 399,

409—is equally implicated regardless of whether the individual sued

as a state actor works for the government full-time or on some other

basis. Second, affording immunity to those acting on the govern-

ment’s behalf serves to “ ‘ensure that talented candidates [are] not de-

terred by the threat of damages suits from entering public service.’ ”

Id., at 408. The government, in need of specialized knowledge or ex-

pertise, may look outside its permanent workforce to secure the ser-

vices of private individuals. But because those individuals are free to

choose other work that would not expose them to liability for gov-

ernment actions, the most talented candidates might decline public

engagements if they did not receive the same immunity enjoyed by

their public employee counterparts. Third, the public interest in en-

suring performance of government duties free from the distractions

Cite as: 566 U. S. ____ (2012) 3

Syllabus

that can accompany lawsuits is implicated whether those duties are

discharged by private individuals or permanent government employ-

ees. Finally, distinguishing among those who carry out the public’s

business based on their particular relationship with the government

creates significant line-drawing problems and can deprive state ac-

tors of the ability to “ ‘reasonably anticipate when their conduct may

give rise to liability for damages,’ ” Anderson v. Creighton, 483 U. S.

635, 646. Pp. 11−13.

(c) This conclusion is not contrary to Wyatt v. Cole, 504 U. S. 158,

or Richardson v. McKnight, 521 U. S. 399. Wyatt did not implicate

the reasons underlying recognition of qualified immunity because the

defendant in that case had no connection to government and pursued

purely private ends. Richardson involved the unusual circumstances

of prison guards employed by a private company who worked in a

privately run prison facility. Nothing of the sort is involved here, or

in the typical case of an individual hired by the government to assist

in carrying out its work. Pp. 13−15.

621 F. 3d 1069, reversed.

ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-

BURG,J., and SOTOMAYOR, J., filed concurring opinions.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1018

_________________

STEVE A. FILARSKY, PETITIONER v. NICHOLAS B.

DELIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 17, 2012]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

Section 1983 provides a cause of action against state

actors who violate an individual’s rights under federal law.

42 U. S. C. §1983. At common law, those who carried out

the work of government enjoyed various protections from

liability when doing so, in order to allow them to serve the

government without undue fear of personal exposure. Our

decisions have looked to these common law protections

in affording either absolute or qualified immunity to indi-

viduals sued under §1983. The question in this case is

whether an individual hired by the government to do its

work is prohibited from seeking such immunity, solely be-

cause he works for the government on something other

than a permanent or full-time basis.

I

A

Nicholas Delia, a firefighter employed by the City of

Rialto, California, became ill while responding to a toxic

spill in August 2006. Under a doctor’s orders, Delia

missed three weeks of work. The City became suspicious

2 FILARSKY v. DELIA

Opinion of the Court

of Delia’s extended absence, and hired a private investi-

gation firm to conduct surveillance on him. The private

investigators observed Delia purchasing building supplies—

including several rolls of fiberglass insulation—from a

home improvement store. The City surmised that Delia

was missing work to do construction on his home rather

than because of illness, and it initiated a formal internal

affairs investigation of him.

Delia was ordered to appear for an administrative in-

vestigation interview. The City hired Steve Filarsky to

conduct the interview. Filarsky was an experienced employ-

ment lawyer who had previously represented the City in

several investigations. Delia and his attorney attended

the interview, along with Filarsky and two fire depart-

ment officials, Mike Peel and Frank Bekker. During the

interview, Filarsky questioned Delia about the building sup-

plies. Delia acknowledged that he had purchased the

supplies, but claimed that he had not yet done the work on

his home.

During a break, Filarsky met with Peel, Bekker, and

Fire Chief Stephen Wells. Filarsky proposed resolving the

investigation by verifying Delia’s claim that he had not

done any work on his home. To do so, Filarsky recom-

mended asking Delia to produce the building materials.

Chief Wells approved the plan.

When the meeting resumed, Filarsky requested permis-

sion for Peel to enter Delia’s home to view the materials.

On the advice of counsel, Delia refused. Filarsky then

asked Delia if he would be willing to bring the materials

out onto his lawn, so that Peel could observe them without

entering his home. Delia again refused to consent. Un-

able to obtain Delia’s cooperation, Filarsky ordered him to

produce the materials for inspection.

Delia’s counsel objected to the order, asserting that it

would violate the Fourth Amendment. When that objec-

tion proved unavailing, Delia’s counsel threatened to sue

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

the City. He went on to tell Filarsky that “[w]e might

quite possibly find a way to figure if we can name you Mr.

Filarsky. . . . If you want to take that chance, you go right

ahead.” App. 131–132. The threat was repeated over and

over: “[E]verybody is going to get named, and they are

going to sweat it out as to whether or not they have indi-

vidual liability . . . .” “[Y]ou order him and you will be

named and that is not an idle threat.” “Whoever issues

that order is going to be named in the lawsuit.” “[W]e will

seek any and all damages including individual liability . . . .

[W]e are coming if you order this.” “[M]ake sure the spell-

ing is clear [in the order] so we know who to sue.” Id.,

at 134–136, 148–149. Despite these threats, Filarsky

prepared an order directing Delia to produce the materi-

als, which Chief Wells signed.

As soon as the interview concluded, Peel and Bekker

followed Delia to his home. Once there, Delia, his attor-

ney, and a union representative went into Delia’s house,

brought out the four rolls of insulation, and placed them

on Delia’s lawn. Peel and Bekker, who remained in their

car during this process, thanked Delia for showing them

the insulation and drove off.

B

Delia brought an action under 42 U. S. C. §1983 against

the City, its Fire Department, Chief Wells, Peel, Bekker,

Filarsky, and ten unidentified individuals, alleging that

the order to produce the building materials violated his

rights under the Fourth and Fourteenth Amendments.

The District Court granted summary judgment to all the

individual defendants, concluding that they were pro-

tected by qualified immunity. The court held that Delia

had “not demonstrated a violation of a clearly established

constitutional right,” because “Delia was not threatened

with insubordination or termination if he did not comply

with any order given and none of these defendants entered

4 FILARSKY v. DELIA

Opinion of the Court

[his] house.” Delia v. Rialto, No. CV 08–03359 (CD Cal.,

Mar. 9, 2009), App. to Pet. for Cert. 42, 48.

The Court of Appeals for the Ninth Circuit affirmed

with respect to all defendants except Filarsky. The Court

of Appeals concluded that the order violated the Fourth

Amendment, but agreed with the District Court that Delia

“ha[d] not demonstrated that a constitutional right was

clearly established as of the date of Chief Wells’s order,

such that defendants would have known that their actions

were unlawful.” Delia v. Rialto, 621 F. 3d 1069, 1079

(2010). As to Filarsky, however, the court concluded that

because he was a private attorney and not a City employ-

ee, he was not entitled to seek the protection of qualified

immunity. Id., at 1080–1081. The court noted that its

decision conflicted with a decision of the Court of Appeals

for the Sixth Circuit, see Cullinan v. Abramson, 128 F. 3d

301, 310 (1997), but considered itself bound by Circuit

precedent and therefore “not free to follow the Cullinan

decision.” 621 F. 3d, at 1080 (citing Gonzalez v. Spencer,

336 F. 3d 832 (CA9 2003)).

Filarsky filed a petition for certiorari, which we granted.

564 U. S. ___ (2011).

II

Section 1983 provides a cause of action against any

person who deprives an individual of federally guaranteed

rights “under color” of state law. 42 U. S. C. §1983. Any-

one whose conduct is “fairly attributable to the state” can

be sued as a state actor under §1983. See Lugar v. Ed-

mondson Oil Co., 457 U. S. 922, 937 (1982). At common

law, government actors were afforded certain protections

from liability, based on the reasoning that “the public good

can best be secured by allowing officers charged with the

duty of deciding upon the rights of others, to act upon

their own free, unbiased convictions, uninfluenced by any

apprehensions.” Wasson v. Mitchell, 18 Iowa 153, 155–156

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

(1864) (internal quotation marks omitted); see also W.

Prosser, Law of Torts §25, p. 150 (1941) (common law

protections derived from the need to avoid the “impossible

burden [that] would fall upon all our agencies of govern-

ment” if those acting on behalf of the government were

“unduly hampered and intimidated in the discharge of

their duties” by a fear of personal liability). Our decisions

have recognized similar immunities under §1983, reason-

ing that common law protections “ ‘well grounded in his-

tory and reason’ had not been abrogated ‘by covert inclusion

in the general language’ of §1983.” Imbler v. Pachtman,

424 U. S. 409, 418 (1976) (quoting Tenney v. Brandhove,

341 U. S. 367, 376 (1951)).

In this case, there is no dispute that qualified immunity

is available for the sort of investigative activities at issue.

See Pearson v. Callahan, 555 U. S. 223, 243–244 (2009).

The Court of Appeals granted this protection to Chief

Wells, Peel, and Bekker, but denied it to Filarsky, because

he was not a public employee but was instead a private

individual “retained by the City to participate in internal

affairs investigations.” 621 F. 3d, at 1079–1080. In de-

termining whether this distinction is valid, we look to the

“general principles of tort immunities and defenses” appli-

cable at common law, and the reasons we have afforded

protection from suit under §1983. Imbler, supra, at 418.

A

Under our precedent, the inquiry begins with the com-

mon law as it existed when Congress passed §1983 in

1871. Tower v. Glover, 467 U. S. 914, 920 (1984). Under-

standing the protections the common law afforded to those

exercising government power in 1871 requires an appreci-

ation of the nature of government at that time. In the

mid-nineteenth century, government was smaller in both

size and reach. It had fewer responsibilities, and operated

primarily at the local level. Local governments faced tight

6 FILARSKY v. DELIA

Opinion of the Court

budget constraints, and generally had neither the need

nor the ability to maintain an established bureaucracy

staffed by professionals. See B. Campbell, The Growth of

American Government: Governance From the Cleveland

Era to the Present 14–16, 20–21 (1995); id., at 20 (noting

that in the 1880s “[t]he governor’s office staff in Wisconsin

. . . totaled five workers if we count the lieutenant gover-

nor and the janitor”).

As one commentator has observed, there was at that

time “no very clear conception of a professional office, that

is, an office the incumbent of which devotes his entire time

to the discharge of public functions, who has no other

occupation, and who receives a sufficiently large compen-

sation to enable him to live without resorting to other

means.” F. Goodnow, Principles of the Administrative

Law of the United States 227 (1905). Instead, to a signifi-

cant extent, government was “administered by members of

society who temporarily or occasionally discharge[d] public

functions.” Id., at 228. Whether government relied pri-

marily upon professionals or occasional workers obviously

varied across the country and across different government

functions. But even at the turn of the twentieth century,

a public servant was often one who “does not devote his

entire time to his public duties, but is, at the same time

that he is holding public office, permitted to carry on some

other regular business, and as a matter of fact finds his

main means of support in such business or in his private

means since he receives from his office a compensation

insufficient to support him.” Id., at 227.

Private citizens were actively involved in government

work, especially where the work most directly touched the

lives of the people. It was not unusual, for example, to see

the owner of the local general store step behind a window

in his shop to don his postman’s hat. See, e.g., Stole

Stamps, Maysville, KY, The Evening Bulletin, p. 1, Sept.

25, 1895 (reporting that “[t]he post office and general store

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

at Mount Hope was broken into,” resulting in the loss of

$400 worth of cutlery and stamps). Nor would it have

been a surprise to find, on a trip to the docks, the local

ferryman collecting harbor fees as public wharfmaster.

See 3 E. Johnson, A History of Kentucky and Kentuckians

1346 (1912).

Even such a core government activity as criminal prose-

cution was often carried out by a mixture of public em-

ployees and private individuals temporarily serving the

public. At the time §1983 was enacted, private lawyers

were regularly engaged to conduct criminal prosecutions

on behalf of the State. See, e.g., Commonwealth v. Gibbs,

70 Mass. 146 (1855); White v. Polk County, 17 Iowa 413

(1864). Abraham Lincoln himself accepted several such

appointments. See, e.g., An Awful Crime and Speedy

Punishment, Springfield Daily Register, May 14, 1853

(reporting that “A. Lincoln, esq. was appointed prosecutor”

in a rape case). In addition, private lawyers often assisted

public prosecutors in significant cases. See, e.g., Com-

monwealth v. Knapp, 10 Mass. 477, 490–491 (1830);

Chambers v. State, 22 Tenn. 237 (1842). And public prose-

cutors themselves continued to represent private clients

while in office—sometimes creating odd conflicts of inter-

est. See People v. Bussey, 82 Mich. 49, 46 N. W. 97, 98

(1890) (public prosecutor employed as private counsel by

the defendant’s wife in several civil suits against the

defendant); Phillip v. Waller, 5 Haw. 609, 617 (1886)

(public prosecutor represented plaintiff in a suit for mali-

cious prosecution); Oliver v. Pate, 43 Ind. 132, 139 (1873)

(public prosecutor who conducted a state prosecution

against a defendant later served as counsel for the de-

fendant in a malicious prosecution suit against the com-

plaining witness).

This mixture of public responsibility and private pur-

suits extended even to the highest levels of government.

Until the position became full-time in 1853, for example,

8 FILARSKY v. DELIA

Opinion of the Court

the Attorney General of the United States was expected to

and did maintain an active private law practice. To cite a

notable illustration, in Hayburn’s Case, 2 Dall. 409 (1792),

the first Attorney General, Edmund Randolph, sought a

writ of mandamus from this Court to compel a lower court

to hear William Hayburn’s petition to be put on the pen-

sion list. When this Court did not allow the Attorney

General to seek the writ in his official capacity, Randolph

readily solved the problem by arguing the case as Hay-

burn’s private lawyer. Ibid.; see also Letter from Edmund

Randolph to James Madison (Aug. 12, 1792), reprinted in

14 The Papers of James Madison 348, 349 (R. Rutland,

T. Mason, R. Brugger, J. Sisson, & F. Teute eds. 1983);

Bloch, The Early Role of the Attorney General in Our

Constitutional Scheme: In the Beginning There Was

Pragmatism, 1989 Duke L. J. 561, 598–599, n. 121, 619.

Given all this, it should come as no surprise that the

common law did not draw a distinction between public

servants and private individuals engaged in public service

in according protection to those carrying out government

responsibilities. Government actors involved in adjudica-

tive activities, for example, were protected by an absolute

immunity from suit. See Bradley v. Fisher, 13 Wall. 335,

347–348 (1872); J. Bishop, Commentaries on the Non-

Contract Law §781 (1889). This immunity applied equally

to “the highest judge in the State or nation” and “the

lowest officer who sits as a court and tries petty causes,”

T. Cooley, Law of Torts 409 (1879), including those who

served as judges on a part-time or episodic basis. Justices

of the peace, for example, often maintained active private

law practices (or even had nonlegal livelihoods), and gen-

erally served in a judicial capacity only part-time. See

Hubbell v. Harbeck, 54 Hun. 147, 7 N. Y. S. 243 (1889);

Ingraham v. Leland, 19 Vt. 304 (1847). In fact, justices of

the peace were not even paid a salary by the government,

but instead received compensation through fees payable

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

by the parties that came before them. See W. Murfee, The

Justice of the Peace §1145 (1886). Yet the common law

extended the same immunity “to a justice of the peace as

to any other judicial officer.” Pratt v. Gardner, 56 Mass.

63, 70 (1848); see also Mangold v. Thorpe, 33 N. J. L. 134,

137–138 (1868).

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 em-

ployed patrol personnel often were publicly appointed

as special policemen, and the means and objects of detec-

tive work, in particular, made it difficult to distinguish

between those on the public payroll and private detec-

tives.” Sklansky, The Private Police, 46 UCLA L. Rev.

1165, 1210 (1999) (footnotes and internal quotation marks

omitted). The protections provided by the common law did

not turn on whether someone we today would call a police

officer worked for the government full-time or instead

for both public and private employers. Rather, at common

law, “[a] special constable, duly appointed according to

law, ha[d] all the powers of a regular constable so far as

may be necessary for the proper discharge of the special

duties intrusted to him, and in the lawful discharge of

those duties, [was] as fully protected as any other officer.”

W. Murfee, A Treatise on the Law of Sheriffs and Other

Ministerial Officers §1121, p. 609 (1884).

Sheriffs executing a warrant were empowered by the

common law to enlist the aid of the able-bodied men of the

community in doing so. See 1 W. Blackstone, Commen-

taries on the Laws of England 332 (1765); In re Quarles,

158 U. S. 532, 535 (1895). While serving as part of

this “posse comitatus,” a private individual had the same

authority as the sheriff, and was protected to the same

extent. See, e.g., Robinson v. State, 93 Ga. 77, 18 S. E.

10 FILARSKY v. DELIA

Opinion of the Court

1018, 1019 (1893) (“A member of a posse comitatus sum-

moned by the sheriff to aid in the execution of a warrant

for a felony in the sheriff ’s hands is entitled to the same

protection in the discharge of his duties as the sheriff

himself ”); State v. Mooring, 115 N. C. 709, 20 S. E. 182

(1894) (considering it “well settled by the courts” that a

sheriff may break open the doors of a house to execute a

search warrant and that “if he act in good faith in doing

so, both he and his posse comitatus will be protected”);

North Carolina v. Gosnell, 74 F. 734, 738–739 (CC WDNC

1896) (“Both judicial and ministerial officers, in the execu-

tion of the duties of their office, are under the strong

protection of the law; and their legally summoned assis-

tants, for such time as in service, are officers of the law”);

Reed v. Rice, 25 Ky. 44, 46–47 (App. 1829) (private indi-

viduals summoned by a constable to execute a search

warrant were protected from a suit based on the invalidity

of the warrant).

Indeed, examples of individuals receiving immunity for

actions taken while engaged in public service on a tempo-

rary or occasional basis are as varied as the reach of gov-

ernment itself. See, e.g., Gregory v. Brooks, 37 Conn. 365,

372 (1870) (public wharfmaster not liable for ordering re-

moval of a vessel unless the order was issued maliciously);

Henderson v. Smith, 26 W. Va. 829, 836–838 (1885)

(notaries public given immunity for discretionary acts

taken in good faith); Chamberlain v. Clayton, 56 Iowa 331,

9 N. W. 237 (1881) (trustees of a public institution for the

disabled not liable absent a showing of malice); McCor-

mick v. Burt, 95 Ill. 263, 265–266 (1880) (school board

members not liable for suspending a student in good

faith); Donohue v. Richards, 38 Me. 379, 392 (1854)

(same); Downer v. Lent, 6 Cal. 94, 95 (1856) (members of a

Board of Pilot Commissioners given immunity for official

acts); Rail v. Potts & Baker, 27 Tenn. 225, 228–230 (1847)

(private individuals appointed by the sheriff to serve as

Cite as: 566 U. S. ____ (2012) 11

Opinion of the Court

judges of an election were not liable for refusing a voter

absent a showing of malice); Jenkins v. Waldron, 11

Johns. 114, 120–121 (NY Sup. Ct. 1814) (same).

We read §1983 “in harmony with general principles of

tort immunities and defenses.” Imbler, 424 U. S., at 418.

And we “proceed[ ] on the assumption that common-law

principles of . . . immunity were incorporated into our

judicial system and that they should not be abrogated

absent clear legislative intent to do so.” Pulliam v. Allen,

466 U. S. 522, 529 (1984). Under this assumption, immu-

nity under §1983 should not vary depending on whether

an individual working for the government does so as a

full-time employee, or on some other basis.

B

Nothing about the reasons we have given for recognizing

immunity under §1983 counsels against carrying forward

the common law rule. As we have explained, such immu-

nity “protect[s] government’s ability to perform its tradi-

tional functions.” Wyatt v. Cole, 504 U. S. 158, 167 (1992).

It does so by helping to avoid “unwarranted timidity” in

performance of public duties, ensuring that talented can-

didates are not deterred from public service, and prevent-

ing the harmful distractions from carrying out the work of

government that can often accompany damages suits.

Richardson v. McKnight, 521 U. S. 399, 409–411 (1997).

We have called the government interest in avoiding

“unwarranted timidity” on the part of those engaged in the

public’s business “the most important special government

immunity-producing concern.” Id., at 409. Ensuring that

those who serve the government do so “with the decisive-

ness and the judgment required by the public good,”

Scheuer v. Rhodes, 416 U. S. 232, 240 (1974), is of vital

importance regardless whether the individual sued as a

state actor works full-time or on some other basis.

Affording immunity not only to public employees but

12 FILARSKY v. DELIA

Opinion of the Court

also to others acting on behalf of the government similarly

serves to “ ‘ensure that talented candidates [are] not de-

terred by the threat of damages suits from entering public

service.’ ” Richardson, supra, at 408 (quoting Wyatt, su-

pra, at 167). 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. This case is a good exam-

ple: Filarsky had 29 years of specialized experience as an

attorney in labor, employment, and personnel matters,

with particular expertise in conducting internal affairs

investigations. App. to Pet. for Cert. 59, 89; App. 156.

The City of Rialto certainly had no permanent employee

with anything approaching those qualifications. To the

extent such private individuals do not depend on the

government for their livelihood, they have freedom to

select other work—work that will not expose them to

liability for government actions. This makes it more likely

that the most talented candidates will decline public en-

gagements if they do not receive the same immunity en-

joyed by their public employee counterparts.

Sometimes, as in this case, private individuals will

work in close coordination with public employees, and face

threatened legal action for the same conduct. See App.

134 (Delia’s lawyer: “everybody is going to get named” in

threatened suit). Because government employees will

often be protected from suit by some form of immunity,

those working alongside them could be left holding the

bag—facing full liability for actions taken in conjunction

with government employees who enjoy immunity for the

same activity. Under such circumstances, any private

individual with a choice might think twice before accept-

ing a government assignment.

The public interest in ensuring performance of govern-

Cite as: 566 U. S. ____ (2012) 13

Opinion of the Court

ment duties free from the distractions that can accompany

even routine lawsuits is also implicated when individuals

other than permanent government employees discharge

these duties. See Richardson, supra, at 411. Not only will

such individuals’ performance of any ongoing government

responsibilities suffer from the distraction of lawsuits, but

such distractions will also often affect any public employ-

ees with whom they work by embroiling those employees

in litigation. This case is again 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 tes-

tify, given their roles in the dispute. Allowing suit under

§1983 against private individuals assisting the govern-

ment will substantially undermine an important reason

immunity is accorded public employees in the first place.

Distinguishing among those who carry out the public’s

business based on the nature of their particular relation-

ship with the government also creates significant line-

drawing problems. It is unclear, for example, how Fil-

arsky would be categorized if he regularly spent half his

time working for the City, or worked exclusively on one

City project for an entire year. See Tr. of Oral Arg. 34–36.

Such questions deprive state actors of the ability to “rea-

sonably anticipate when their conduct may give rise to

liability for damages,” Anderson v. Creighton, 483 U. S.

635, 646 (1987) (alteration and internal quotation marks

omitted), frustrating the purposes immunity is meant to

serve. An uncertain immunity is little better than no

immunity at all.

III

Our decisions in Wyatt v. Cole, 504 U. S. 158 (1992), and

Richardson v. McKnight, 521 U. S. 399 (1997), are not to

the contrary. In Wyatt, we held that individuals who used

a state replevin law to compel the local sheriff to seize

disputed property from a former business partner were

14 FILARSKY v. DELIA

Opinion of the Court

not entitled to seek qualified immunity. Cf. Lugar, 457

U. S. 922 (holding that an individual who uses a state

replevin, garnishment, or attachment statute later de-

clared to be unconstitutional acts under color of state law

for purposes of §1983). We explained that the reasons

underlying recognition of qualified immunity did not sup-

port its extension to individuals who had no connection

to government and pursued purely private ends. Because

such individuals “hold no office requiring them to exercise

discretion; nor are they principally concerned with en-

hancing the public good,” we concluded that extending

immunity to them would “have no bearing on whether

public officials are able to act forcefully and decisively in

their jobs or on whether qualified applicants enter public

service.” 504 U. S., at 168.

Wyatt is plainly not implicated by the circumstances of

this case. Unlike the defendants in Wyatt, who were us-

ing the mechanisms of government to achieve their own

ends, individuals working for the government in pursuit of

government objectives are “principally concerned with en-

hancing the public good.” Ibid. Whether such individ-

uals have assurance that they will be able to seek protec-

tion if sued under §1983 directly affects the government’s

ability to achieve its objectives through their public ser-

vice. Put simply, Wyatt involved no government agents,

no government interests, and no government need for

immunity.

In Richardson, we considered whether guards employed

by a privately run prison facility could seek the protection

of qualified immunity. Although the Court had previously

determined that public-employee prison guards were

entitled to qualified immunity, see Procunier v. Navarette,

434 U. S. 555 (1978), it determined that prison guards

employed by a private company and working in a privately

run prison facility did not enjoy the same protection. We

explained that the various incentives characteristic of the

Cite as: 566 U. S. ____ (2012) 15

Opinion of the Court

private market in that case ensured that the guards would

not perform their public duties with unwarranted timidity

or be deterred from entering that line of work. 521 U. S.,

at 410–411.

Richardson was a self-consciously “narrow[ ]” decision.

Id., at 413 (“[W]e have answered the immunity question

narrowly, in the context in which it arose”). The Court

made clear that its holding was not meant to foreclose all

claims of immunity by private individuals. Ibid. Instead,

the Court emphasized that the particular circumstances of

that case—“a private firm, systematically organized to

assume a major lengthy administrative task (managing an

institution) with limited direct supervision by the govern-

ment, undertak[ing] that task for profit and potentially

in competition with other firms”—combined sufficiently to

mitigate the concerns underlying recognition of govern-

mental immunity under §1983. Ibid. Nothing of the sort

is involved here, or in the typical case of an individual

hired by the government to assist in carrying out its work.

* * *

A straightforward application of the rule set out above

is sufficient to resolve this case. Though not a public em-

ployee, 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 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

16 FILARSKY v. DELIA

Opinion of the Court

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.

In light of the foregoing, the judgment of the Court of

Appeals denying qualified immunity to Filarsky is

reversed.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1018

_________________

STEVE A. FILARSKY, PETITIONER v. NICHOLAS B.

DELIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 17, 2012]

JUSTICE GINSBURG, concurring.

The Court addresses a sole question in this case: Is a

private attorney retained by a municipality to investigate

a personnel matter eligible for qualified immunity in a

suit under 42 U. S. C. §1983 alleging a constitutional

violation committed in the course of the investigation? I

agree that the answer is yes and that the judgment of

the Court of Appeals holding private attorney Filarsky

categorically ineligible for qualified immunity must be re-

versed. Qualified immunity may be overcome, however, if

the defendant knew or should have known that his con-

duct violated a right “clearly established” at the time of

the episode in suit. See Harlow v. Fitzgerald, 457 U. S.

800, 818 (1982). Because the Ninth Circuit did not con-

sider the application of that standard to Filarsky, the

matter, as I see it, may be pursued on remand.

Filarsky was retained by the City of Rialto to investi-

gate whether city firefighter Delia was taking time off

from work under the false pretense of a disabling physical

condition. In pursuit of the investigation, Filarsky asked

Delia to consent to a search of his home to determine what

Delia had done with several rolls of insulation he had

recently purchased at a home improvement store. When

Delia, on counsel’s advice, refused to consent to the search,

Filarsky “hatch[ed] a plan” to overcome Delia’s resistance.

2 FILARSKY v. DELIA

GINSBURG, J., concurring

Delia v. Rialto, 621 F. 3d 1069, 1077 (CA9 2010). “[W]e

will do it a different way,” Filarsky informed Delia. App.

129; see 621 F. 3d, at 1077 (“Unable to obtain Delia’s

consent to a warrantless search of his house . . . , Filarsky

tried a different tactic.”).

Following Filarsky’s advice, Fire Chief Wells ordered

Delia to bring the insulation out of his house and place the

rolls on his lawn for inspection. App. 158. Filarsky rec-

ommended this course, the Ninth Circuit observed, mind-

ful that “an individual does not have an expectation of

privacy in items exposed to the public, thereby eliminating

the need for a search warrant.” 621 F. 3d, at 1077. Delia

complied with Chief Wells’s order by producing the rolls,

all of them unused, App. 78, 85, after which the investi-

gation into the legitimacy of Delia’s absence from work

apparently ended.

In explaining why the individual defendants other than

Filarsky were entitled to summary judgment on their

qualified immunity pleas, the Ninth Circuit stated that

“no . . . threat to [Delia’s] employment” attended Fire

Chief Wells’s order. 621 F. 3d, at 1079. The District

Court similarly stated that “Delia was not threatened with

insubordination or termination if he did not comply with

[the] order.” App. to Pet. for Cert. 48.

These statements are at odds with the facts, as re-

counted by the Court of Appeals. “At the onset of the in-

terview,” the Ninth Circuit stressed, “Filarsky warned Delia

that he was obligated to fully cooperate,” and that “[i]f at

any time it is deemed you are not cooperating then you

can be held to be insubordinate and subject to disciplinary

action, up to and including termination.” 621 F. 3d, at

1072 (internal quotation marks omitted). Continuing in

this vein, the Court of Appeals concluded that “Delia’s

actions were involuntary and coerced by the direct threat

of sanctions including loss of his firefighter position.” Id.,

at 1077; see id., at 1085 (“Delia’s actions were involun-

Cite as: 566 U. S. ____ (2012) 3

GINSBURG, J., concurring

tary and occurred as a result of the direct threat of

sanctions[.]”).

In further proceedings upon return of this case to the

Court of Appeals, these questions bear attention. First, if

it is “clearly established,” as the Ninth Circuit thought it

was, that “the warrantless search of a home is presump-

tively unreasonable,” id., at 1075, and that a well-trained

investigating officer would so comprehend,1 may an official

circumvent the warrant requirement by ordering the per-

son under investigation to cart his personal property out

of the house for inspection?2 And if it is “clearly estab-

lished” that an employee may not be fired for exercising a

constitutional right, see id., at 1079,3 is it not equally

plain that discipline or discharge may not be threatened to

induce surrender of such a right?

In short, the Court has responded appropriately to the

question tendered for our review, but the Circuit’s law will

remain muddled absent the Court of Appeals’ focused

attention to the question whether Filarsky’s conduct

violated “clearly established” law.

——————

1 Delia also suggests that Filarsky’s conduct should be measured

against a “reasonable attorney” standard: whether an attorney provid-

ing advice in a public-employee investigation should have known that

the search of Delia’s personal property, stored in his home, would be

lawless. See Brief for Respondent 45–46.

2 An additional inquiry may be appropriate: Although conceived as a

substitute for a warrantless entry, should the inspection order Filarsky

counseled pass muster as a permissible discovery device? Cf. Okla-

homa Press Publishing Co. v. Walling, 327 U. S. 186, 195, 208–211 (1946)

(subpoena duces tecum for a corporation’s business records, authorized

by §9 of the Fair Labor Standards Act, encountered no Fourth Amend-

ment shoal).

3 The Ninth Circuit referred to cases holding that public employees’

job retention cannot be conditioned on relinquishing the Fifth Amend-

ment’s safeguard against self-incrimination: Uniformed Sanitation Men

Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S.

280 (1968), and Gardner v. Broderick, 392 U. S. 273 (1968).

Cite as: 566 U. S. ____ (2012) 1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1018

_________________

STEVE A. FILARSKY, PETITIONER v. NICHOLAS B.

DELIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 17, 2012]

JUSTICE SOTOMAYOR, concurring.

The Court of Appeals denied qualified immunity to

Filarsky solely because, as retained outside counsel, he

was not a formal employee of the City of Rialto. I agree

with and join today’s opinion holding that this distinction

is not a sound basis on which to deny immunity.

I add only that it does not follow that every private

individual who works for the government in some capacity

necessarily may claim qualified immunity when sued

under 42 U. S. C. §1983. Such individuals must satisfy

our usual test for conferring immunity. As the Court

explains, that test “look[s] to the ‘general principles of tort

immunities and defenses’ applicable at common law, and

the reasons we have afforded protection from suit under

§1983.” Ante, at 5 (quoting Imbler v. Pachtman, 424 U. S.

409, 418 (1976)).

Thus in Richardson v. McKnight, 521 U. S. 399 (1997),

we denied qualified immunity to prison guards who were

privately employed, despite their quintessentially public

function. We did so because we found “no special reasons

significantly favoring an extension of governmental im-

munity” in that context. Id., at 412. We left open, how-

ever, the question whether immunity would be appropriate

for “a private individual briefly associated with a govern-

ment body, serving as an adjunct to government in an

2 FILARSKY v. DELIA

SOTOMAYOR, J., concurring

essential governmental activity, or acting under close of-

ficial supervision.” Id., at 413.

Filarsky, supported by the United States as amicus

curiae, contends that he fits into this coda because he

worked in close coordination with and under the supervi-

sion of City employees. Whether Filarsky was supervised

by those employees, and did not himself do the supervis-

ing, is unclear. But there is no doubt that Filarsky

worked alongside the employees in investigating Delia.

In such circumstances, I agree that Filarsky should be

allowed to claim qualified immunity from a §1983 suit.

As the Court’s opinion persuasively explains, there is a

“ ‘firmly rooted’ tradition of immunity” applicable to indi-

viduals who perform government work in capacities other

than as formal employees. Id., at 404; see ante, at 5–11.

And conferring qualified immunity on individuals like

Filarsky helps “protec[t] government’s ability to perform

its traditional functions,” and thereby helps “protect the

public at large.” Wyatt v. Cole, 504 U. S. 158, 167–168

(1992). When a private individual works closely with

immune government employees, there is a real risk that

the individual will be intimidated from performing his

duties fully if he, and he alone, may bear the price of

liability for collective conduct. See ante, at 12; see also

ante, at 13 (noting distraction caused to immune public

employees by §1983 litigation brought against nonimmune

associates).

This does not mean that a private individual may assert

qualified immunity only when working in close coordina-

tion with government employees. For example, Richard-

son’s suggestion that immunity is also appropriate for

individuals “serving as an adjunct to government in an

essential governmental activity,” 521 U. S., at 413, would

seem to encompass modern-day special prosecutors and

comparable individuals hired for their independence.

There may yet be other circumstances in which immunity

Cite as: 566 U. S. ____ (2012) 3

SOTOMAYOR, J., concurring

is warranted for private actors. The point is simply that

such cases should be decided as they arise, as is our

longstanding practice in the field of immunity law.