Amicus Curiae Brief — James A. DeLanis, Petitioner v. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, et al.

No. 26-21

In The

Supreme Court of the United States

JAMES A. DELANIS,

v.

Petitioner,

BAKER, DONELSON, BEARMAN, CALDWELL &

BERKOWITZ, PC, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE INSTITUTE FOR JUSTICE,

MANHATTAN INSTITUTE, NEW CIVIL LIBERTIES ALLIANCE, AND ADVANCING

AMERICAN FREEDOM, INC. AS

AMICI CURIAE SUPPORTING PETITIONER

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

ANYA BIDWELL

Counsel of Record

PATRICK JAICOMO

ROBERT FELLNER

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

CASEY NORMAN

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Dr.,

Ste. 300

Arlington, VA 22203

(202) 869-5210

casey.norman@ncla.

legal

J. MARC WHEAT

TIMOTHY HARPER

ADVANCING AMERICAN

FREEDOM, INC.

801 Pennsylvania Ave., N. W.

Ste. 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 4

ARGUMENT .............................................................. 5

I. Qualified immunity applies only when it

serves the doctrine’s purpose. ......................... 5

A. Qualified immunity applies only when

necessary to ensure the effective

provision of a governmental function ........ 6

B. Qualified immunity does not apply to the

internal, profit-driven employment

decisions of a private law firm that serves

as the government’s outside counsel ....... 11

C. This Court’s intervention is necessary to

resolve the circuit split concerning

qualified immunity’s scope-of-authority

question .................................................... 16

II. Private parties’ entitlement to qualified

immunity when carrying out the

public’s business must be bound by the

clearly established law governing public

officials ........................................................... 19

A. The same immunity means the same

clearly established law............................. 20

ii

B. Because clearly established law is casespecific, the lower court’s rule creates a

self-perpetuating shield for private

defendants. ............................................... 23

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton,

483 U.S. 635 (1987) ..........................................8, 18

Blum v. Yaretsky,

457 U.S. 991 (1982) ..............................................15

Butz v. Economou,

438 U.S. 478 (1978) ................................................9

Central Specialties, Inc. v. Large,

18 F.4th 989 (8th Cir. 2021) ..........................17, 18

Crawford-El v. Britton,

523 U.S. 574 (1998) ..............................................23

Cummings v. Dean,

913 F.3d 1227 (10th Cir. 2019)............................17

Diaz v. Cantu,

123 F.4th 736 (5th Cir. 2024) ..............................17

Filarsky v. Delia,

566 U.S. 377 (2012) .................................... 8–15, 21

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .................... 6–9, 13, 18, 22–23

Mackey v. Dyke,

29 F.3d 1086 (6th Cir. 1994)................................17

iv

Mullenix v. Luna,

577 U.S. 7 (2015) ..................................................18

Richardson v. McKnight,

521 U.S. 399 (1997) .............................. 7–11, 13–15

Stanley v. Gallegos,

852 F.3d 1210 (10th Cir. 2017)......................16–18

Sutton v. Providence St. Joseph Med. Ctr.,

192 F.3d 826 (9th Cir. 1999)................................15

Sweetin v. Texas City,

48 F.4th 387 (5th Cir. 2022) ................................16

Wyatt v. Cole,

504 U.S. 158 (1992) ...................... 4, 6–8, 10, 14, 15

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019)................................24

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..........................................9, 21

RULES

Sup. Ct. R. 37.2 ...........................................................1

Sup. Ct. R. 37.6 ...........................................................1

OTHER AUTHORITIES

Pat Fackrell,

A Call to Clarify the “Scope of Authority”

Question of Qualified Immunity,

68 Clev. St. L. Rev. 1 (2019) ................................16

v

Petition for a Writ of Cert., Central Specialties, Inc.

v. Large, cert. denied, 143 S. Ct. 369 (2022) (No.

21-1552) ............................................................1, 17

1

INTEREST OF AMICI CURIAE1

The Institute for Justice (IJ) is a nonprofit publicinterest law center committed to defending the essential foundations of a free society by securing greater

protection for individual liberty. Central to that mission is protecting the Constitution’s guarantee of accountability for government officials and state actors

who violate individuals’ constitutional rights. Because qualified immunity undermines the Constitution’s promise of accountability, IJ has an institutional interest in ensuring that the doctrine is, at minimum, not extended any further than necessary to

achieve its stated policy objectives. Specifically, IJ has

an institutional interest in ensuring that qualified immunity is available only when the party invoking the

doctrine’s protection first establishes that the challenged conduct falls within the scope of its official duties, see Pet. for a Writ of Cert., Central Specialties,

Inc. v. Large, cert. denied, 143 S. Ct. 369 (2022) (No.

21-1552), and that the clearly established analysis is

applied faithfully, including to private parties engaged in carrying out public business.

The Manhattan Institute (MI) is a nonprofit public

policy research foundation whose mission is to develop and disseminate ideas that foster greater economic choice and individual responsibility. MI is interested in this case because governments can be both

1 No counsel for a party authored this brief in whole or in part,

and no person other than the amici curiae or their counsel made

a monetary contribution to fund the preparation or submission

of this brief. Sup. Ct. R. 37.6. Amici curiae gave timely notice to

the parties of their intent to file this brief. Sup. Ct. R. 37.2.

2

effective and protect individual rights. Indeed, as this

Court has held, the purpose of qualified immunity is

partially to ensure that those who carry out important

government functions can do so fearlessly and decisively. Yet when those actors transgress the scope of

their authority, the justification for qualified immunity breaks down, as does governmental effectiveness.

These interests converge here. Because the clearly

established test demands case-specific precedent, dispensing with the scope-of-authority requirement converts qualified immunity into an effectively absolute

immunity for the actors least entitled to it—those operating outside any delegated authority, whose conduct no precedent will ever squarely address.

The New Civil Liberties Alliance (NCLA) is a nonpartisan, nonprofit civil-rights organization and public-interest law firm devoted to defending constitutional freedoms from the administrative state’s depredations. The “civil liberties” of the organization’s

name include rights at least as old as the U.S. Constitution itself, such as freedom of speech and the right

to be tried in front of impartial judges who provide

their independent judgments on the meaning of the

law. Yet these selfsame rights are also very contemporary—and in dire need of renewed vindication—

precisely because Congress, executive-branch officials, administrative agencies, and even the courts

have neglected them for so long.

As a staunch defender of Americans’ constitutional rights, NCLA has a substantial interest in the

outcome of this case and the potential impact it may

have on the constitutionally infirm doctrine of today’s

3

qualified immunity, which the Sixth Circuit has rendered all the more problematic. In practice, modern

qualified immunity already amounts to a get-out-ofjail-free card for most government officials—even

those determined to have unambiguously violated

constitutional rights—who are deemed safe from legal

accountability so long as there is even the slightest

reasonable ambiguity that the law was not “clearly established” at the time of the violation. The decision

below expands the doctrine well beyond its confines to

shield a private firm from liability for an internal decision made to protect its own business interests. That

expansion does not promote the doctrine’s purpose of

effective government. It simply shields private entities that, to protect their own business interests, carry

out the government’s unconstitutional demands.

Advancing American Freedom (AAF) is a nonprofit organization that promotes and defends policies

that elevate traditional American values, including

the uniquely American idea that all people are created equal and endowed by their Creator with unalienable rights to life, liberty, and the pursuit of happiness. AAF “will continue to serve as a beacon for

conservative ideas, a reminder to all branches of government of their responsibilities to the nation,” Edwin J. Feulner, Jr, Conservatives Stalk the House: The

Story of the Republican Study Committee 212 (Green

Hill Publishers, Inc. 1983) and believes that the governmental structures established by the Constitution

are necessary for the preservation of the liberty of the

people. Independence Index: Measuring Life, Liberty

and the Pursuit of Happiness, Advancing American

Freedom (https://theindependenceindex.org/).

4

SUMMARY OF ARGUMENT

The Sixth Circuit’s extension of qualified immunity to a private law firm’s internal employment decision that the firm “conceded” was made “solely for its

own private business interests,” Pet. App. 39a (Clay,

J., dissenting), represents an unwarranted and dangerous expansion of qualified immunity that is inconsistent with this Court’s qualified immunity jurisprudence. Certiorari is warranted.

First, qualified immunity is inherently limited in

scope. By its own terms, it applies only when necessary to protect the public at large by ensuring that the

government can operate effectively. Wyatt v. Cole, 504

U.S. 158, 167–168 (1992). Because qualified immunity’s purpose is only implicated in circumstances

where individuals who are principally concerned with

enhancing the public good are working for the government in pursuit of governmental objectives, it necessarily does not extend to the internal employment decisions of a private law firm simply because that firm

represents a governmental entity in other contexts. In

holding otherwise, the Sixth Circuit ignored the doctrine’s inherent scope-of-authority limitation, which

is itself the source of an ongoing circuit split. That

threshold inquiry is fundamental to qualified immunity. Without it, the case-specific demands of the

clearly established test convert qualified immunity

into an effectively absolute immunity for the actors

least entitled to it. This Court’s intervention is thus

necessary to correct the Sixth Circuit’s erroneous

holding below and to provide much needed guidance

to the other courts of appeals, which remain deeply

5

divided over how to properly construe and apply the

scope of qualified immunity.

Second, when a private party is engaged in the

provision of a public service and entitled to invoke

qualified immunity’s protection, it must be bound by

the same clearly established law that applies to public

officials. The Sixth Circuit’s contrary holding below is

incompatible with this Court’s qualified immunity jurisprudence and functions as a license to lawlessness

by allowing certain state actors to violate clearly established law simply because they do not work for the

government on a full-time basis.

ARGUMENT

I. Qualified immunity applies only when it

serves the doctrine’s purpose.

A private law firm is not entitled to qualified immunity for its internal, private conduct just because

it elsewhere performs some government work. Instead, qualified immunity applies only when it furthers the doctrine’s singular purpose of ensuring that

the government can perform its traditional functions

effectively. Because Baker Donelson was not engaged

in the provision of a governmental function when it

chose to fire Mr. DeLanis, that conduct is not protected by qualified immunity.

Part I.A describes qualified immunity’s inherent

limits as reflected in this Court’s precedent: the doctrine extends only to those exercising delegated authority in service of the public and only for conduct

within the scope of that authority. Part I.B applies

6

that limitation here—Baker Donelson’s internal employment decision formed no part of any authority

Nashville delegated to it. Part I.C explains that this

Court’s intervention is necessary because the courts

of appeals have split three ways over the threshold

scope-of-authority inquiry.

A.

Qualified immunity applies only when

necessary to ensure the effective provision of a governmental function.

Since first creating qualified immunity, this Court

has consistently defined the doctrine as serving a singular purpose: “protect[ing] the public at large” by

“protecting government’s ability to perform its traditional functions.” Wyatt, 504 U.S. at 167–168. As this

Court explained when it first created the modern doctrine in Harlow v. Fitzgerald, the question of government immunity “inherently requires a balance between the evils inevitable in any available alternative.” 457 U.S. 800, 813 (1982). The Court felt that it

was necessary to strengthen the immunity available

to public officials to prevent them from enduring “the

costs of trial or * * * the burdens of broad-reaching

discovery” associated with defending against “insubstantial claims.” Id. at 817–818. This, in turn, would

harm the public by distracting “officials from their

governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. at 816.

At the same time, the Court simultaneously recognized that strengthening immunity to achieve these

policy goals would necessarily harm other important

7

public interests, as immunity prevents the “only realistic avenue for vindication of constitutional guarantees” when government officials “abuse” their power.

Id. at 814. Accordingly, the doctrine is supposed to be

carefully balanced to achieve “the best attainable accommodation of [these two] competing values.” Ibid.

In this context, protecting the government’s ability to perform its traditional functions means protecting the government’s ability to carry out those functions effectively. Specifically, qualified immunity is

designed to protect the effectiveness of government by

(1) ensuring that those tasked with carrying out governmental functions can do so fearlessly and decisively, free of the distractions of potential lawsuits,

and (2) ensuring that talented candidates are not deterred by “the threat of damages suits from entering

public service.” Wyatt, 504 U.S. at 167–168; see also

Richardson v. McKnight, 521 U.S. 399, 407–408

(1997) (qualified immunity’s purpose is “providing immunity where necessary to preserve the ability of government officials to serve the public good or to ensure

that talented candidates were not deterred by the

threat of damages suits from entering public service”

(cleaned up)).

Furthermore, although this Court has recognized

a qualified immunity in two distinct circumstances—

either by invoking “public policy” or by looking to the

common law—government effectiveness has always

been the immunity’s purpose, regardless of its source.

Compare Harlow, 457 U.S. at 814, 816 (identifying

the “distraction of officials from their governmental

duties, inhibition of discretionary action, and

8

deterrence of able people from public service” as the

“public policy” goals of a qualified immunity), with

Filarsky v. Delia, 566 U.S. 377, 383 (2012) ( “common

law protections derived from the need to avoid the impossible burden that would fall upon all our agencies

of government 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”

(cleaned up)); but see Anderson v. Creighton, 483 U.S.

635, 645 (1987) (Harlow “completely reformulated

qualified immunity along principles not at all embodied in the common law”).

Accordingly, qualified immunity will apply only

where it is “necessary to preserve” the interest in government effectiveness described above. Richardson,

521 U.S. at 407–408. So, “individuals working for the

government in pursuit of government objectives” are

entitled to qualified immunity for “such work,” precisely because that is where the doctrine is supposed

to advance government effectiveness. Filarsky, 566

U.S. at 392, 394 (emphasis added); see also Wyatt, 504

U.S. at 167 (qualified immunity applies “where it [is]

necessary to preserve [government officials’] ability to

serve the public good”). But because the doctrine exists solely “to safeguard [the effectiveness of] government,” and “not to benefit [government] agents,” it extends only as far as necessary to achieve its purpose.

Ibid. (emphasis added).

Government officials are thus not entitled to qualified immunity for conduct undertaken in their private capacity or for other conduct outside the scope of

their official authority; immunity is instead limited to

9

protecting government officials’ “discretionary functions performed in their official capacities.” Ziglar v.

Abbasi, 582 U.S. 120, 150 (2017) (emphasis added);

see also Harlow, 457 U.S. at 813 (qualified immunity

applies to the “official functions” of government employees); Butz v. Economou, 438 U.S. 478, 495 (1978)

(federal officers are not entitled to immunity “for actions manifestly beyond their line of duty”).

This is not to say that only government officials

are eligible for qualified immunity. This Court has

held that private individuals retained to carry out

government work may be eligible as well. But even

when the challenged conduct involves the provision of

a governmental function, that alone is not enough.

See Richardson, 521 U.S. at 409. Under the doctrine’s

policy rationale, immunity is warranted only if—considering the incentives and safeguards otherwise present—the prospect of litigation and personal liability

would otherwise impair the effective performance of a

governmental function. Id. at 408–412. Richardson

thus denied immunity to private prison guards who

performed public functions where competitive market

pressures and the private firm’s flexibility to reward

or discipline its employees eliminated any “special immunity-related need to encourage vigorous performance.” Id. at 410–411. Thus, the doctrine’s rationale

has no purchase where market incentives already

promote vigorous performance—and less still where,

as here, the challenged conduct does not involve any

governmental function at all. This aligns with everything this Court held in Filarsky, notwithstanding the

Sixth Circuit’s broad overreading of that case. See

Pet. App. 14a–15a (the majority claimed its holding

10

was supported by Filarsky); but see id. at 32a–34a

(Clay, J., dissenting) (Filarsky supports neither the

majority’s “new legal rule” nor its decision to “extend[]

qualified immunity to Baker Donelson in this case”).

In Filarsky, the City of Rialto, California, retained

a private lawyer to help carry out a “formal internal

affairs investigation” concerning the potential misuse

of paid sick leave by a city worker. 566 U.S. at 380–

381. This Court held that the private lawyer was entitled to qualified immunity for his work related to

that “official investigation” because (1) “the sort of investigative activities at issue” there involved the provision of a government function, and (2) the surrounding circumstances presented a genuine immunity-related need to ensure that Rialto could perform that

governmental function effectively. Id. at 384, 390–

392. As the Court explained, “[t]he public interest in

ensuring performance of government duties * * * is

also implicated when individuals other than permanent government employees discharge these duties.”

Id. at 391 (emphasis added). Accordingly, Mr.

Filarsky was entitled to qualified immunity for the

work he performed as “Rialto’s internal affairs investigator,” even though “he was not a permanent, fulltime employee of the City.” Id. at 393–394.

Thus, there are two necessary conditions that

must be satisfied for qualified immunity to attach to

private actors: (1) the conduct must involve the provision of a governmental function, id. at 391; Wyatt, 504

U.S. at 167–168; Richardson, 521 U.S. at 407–408,

and (2) the conduct must be performed in a manner

that implicates the doctrine’s interest in ensuring

11

that the governmental function is carried out effectively. Richardson, 521 U.S. at 409–412; accord

Filarsky, 566 U.S. at 393. In other words, qualified

immunity only applies when such immunity is necessary to ensure the effective provision of a governmental function, irrespective of “the nature of [the] particular relationship” between the government and the

individual tasked with “carry[ing] out the public’s

business.” Filarsky, 566 U.S. at 391.

B.

Qualified immunity does not apply to

the internal, profit-driven employment

decisions of a private law firm that

serves as the government’s outside

counsel.

Qualified immunity does not apply to the internal,

profit-driven employment decisions of private law

firms that serve as outside counsel for the government, as such conduct does not involve the provision

of a governmental function. The Sixth Circuit’s erroneous decision to the contrary stems from that court’s

failure to apply qualified immunity’s inherent scopeof-authority limitation firmly embedded in this

Court’s jurisprudence. Put simply, the Sixth Circuit’s

fundamental error was assuming that, because Baker

Donelson may have been entitled to qualified immunity for its government work in connection with its legal representation of Nashville, it was therefore entitled to qualified immunity for actions taken outside

the scope of that work. See Pet. App. 9a, 17a (because

Baker Donelson “served as outside counsel for Nashville,” the firm was entitled to qualified immunity for

allegedly complying with Nashville’s demand to fire

12

Mr. DeLanis in retaliation for “DeLanis’s free-speech

advocacy”).

As shown above, qualified immunity applies only

when necessary to ensure the effective provision of a

governmental function. Thus, for qualified immunity

to apply, the conduct must (1) involve the provision of

a governmental function, and (2) implicate the doctrine’s effectiveness interests. See Part I.A, supra.

Here, Baker Donelson served as outside counsel to

Nashville. Thus, the Baker Donelson attorneys who

performed legal work on behalf of Nashville may be

entitled to invoke qualified immunity for such work,

assuming, as the court below held, that providing legal representation to a governmental entity is a governmental function. But the firm’s internal employment decisions do not constitute the provision of legal

services or otherwise form any part of the firm’s legal

representation of the city, as the firm necessarily conceded. Pet. App. 39a (Clay, J., dissenting) (“Baker Donelson made its own decision and did so solely for its

own private business interests, as conceded by Baker

Donelson at oral argument.”).

Consequently, Baker Donelson’s decision to fire

Mr. DeLanis was not part of its government work, and

the firm is thus not entitled to qualified immunity for

such conduct. Filarsky, 566 U.S. at 380, 385 (common

law immunity protected “those who carried out the

work of government”); id. at 383 (the scope of common

law immunity covered “officers charged with the duty

of deciding upon the rights of others”); id. at 384 (common law immunity applied to “those exercising government power”); id. at 387 (common law immunity

13

“accord[ed] protection to those carrying out government responsibilities”); id. at 391 (eligibility for qualified immunity is limited to “those who carry out the

public’s business”); id. at 393–394 (Mr. Filarsky was

entitled to qualified immunity for his work assisting

the City “in conducting an official investigation into

potential wrongdoing”).

To see that this is so, imagine if this case involved

Nashville’s own government lawyer, rather than outside counsel. Imagine also that this Nashville attorney separately served as president of the HOA of the

community that Mr. DeLanis calls home. Nashville

still wants to punish Mr. DeLanis for his protected

speech, but this time the city pressures its staff attorney to use his power as HOA president to take an adverse action against Mr. DeLanis, rather than pressuring Baker Donelson to do so. Such conduct would

not be protected by qualified immunity because it

forms no part of the attorney’s “official functions.”

Harlow, 457 U.S. at 813; see also Filarsky, 566 U.S.

at 383–385, 387, 391, 393–394. Likewise, although

Baker Donelson attorneys may be entitled to qualified

immunity while “carrying out government responsibilities” as Nashville’s legal counsel, see Filarsky, 566

U.S. at 387, the doctrine does not protect the firm’s

non-governmental conduct, which includes the firm’s

internal staff management and the carrying out of its

private business interests generally. Richardson, 521

U.S. at 409 (qualified immunity is “especially” inappropriate “for a private person who performs a job

without government supervision or direction”).

14

In holding otherwise, the Sixth Circuit never

found that Baker Donelson’s decision to fire Mr. DeLanis was an act of public service or constituted some

part of the firm’s legal representation on behalf of the

city; indeed, the panel majority seemed to recognize it

was just the opposite. Pet. App. 24a (“Baker Donelson,

for better or worse, sought to protect its client base

* * * [and the firm’s] business interests drove its conduct.”). The majority instead seemed to base its holding on fairness, as shown by its conclusory assertion

that “[t]o the extent the law firm functioned as a state

actor subject to First Amendment liability when representing Nashville, as DeLanis alleges, the ability to

manage its staff undoubtedly fell within its discretionary powers as well.” Pet. App. 11a.

As its only support for its argument, the majority

claimed to be following a rule announced in Filarsky,

where this Court ostensibly held that private actors

must be entitled to qualified immunity whenever they

face liability as a state actor. Pet. App. 14a–15a (“If a

private actor is liable to a lawsuit as a state actor, it

should also benefit from a state actor’s defenses.” (citing Filarsky, 566 U.S. at 389–391)). But Filarsky said

no such thing. To the contrary, this Court has, in fact,

twice denied qualified immunity’s protection to private parties who nevertheless were facing Section

1983 liability as state actors. Wyatt, 504 U.S. at 168

(no qualified immunity for private parties who were

facing liability as state actors for using a state replevin law later held unconstitutional to deprive a

person of their property); Richardson, 521 U.S. at 413

(no qualified immunity for private prison guards; if

found to be state actors on remand, they would face

15

liability under Section 1983). Indeed, in Wyatt, this

Court expressly held that the “principles of equality

and fairness” were insufficient grounds “to justify

* * * an expansion” of qualified immunity to the private parties facing potential Section 1983 liability

there. 504 U.S. at 168. And far from overruling Wyatt

and Richardson to repudiate this rule, the Filarsky

Court instead expressly recognized it as controlling

law. See Filarsky, 566 U.S. at 392–393 (both Wyatt

and Richardson denied qualified immunity to private

parties facing a Section 1983 claim for damages).

The Sixth Circuit majority’s fairness principle—

that a party liable to suit “as a state actor” should

“also benefit from a state actor’s defenses,” Pet. App.

15a—conflates two inquiries that ask different questions. State action asks whether conduct is fairly attributable to the State. Immunity asks whether the

actor was exercising delegated authority in service of

the public good. To whatever extent the majority’s

rule reflects a concern for fairness to a private party

coerced into acting, that concern is the business of

state-action doctrine, not immunity doctrine—and

state-action doctrine already accounts for it. See

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (it is the

“State” that will “normally” be liable for private action

held to be state action due to State coercion); see also

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d

826, 836 (9th Cir. 1999) (“The compulsion analysis

16

originated in cases in which the government itself, not

a private entity, was the defendant.”).2

The Sixth Circuit’s extension of qualified immunity to include the non-governmental acts of a private

party is thus squarely foreclosed by this Court’s precedent and warrants this Court’s review.

C.

This Court’s intervention is necessary to

resolve the circuit split concerning qualified

immunity’s

scope-of-authority

question.

This case presents a clean vehicle to address the

scope of authority issue discussed above (an issue Mr.

DeLanis pressed and the panel passed upon, see Pet.

App. 10a), which has deeply divided the courts of appeals. Most circuit courts correctly recognize the

“threshold requirement” that a party invoking qualified immunity must first establish that his challenged

conduct fell “within the scope of his [official] duties.”

Sweetin v. Texas City, 48 F.4th 387, 392 (5th Cir.

2022); see also Stanley v. Gallegos, 852 F.3d 1210,

1214 (10th Cir. 2017) (collecting cases applying the

majority rule before declining to do so). But these

courts are nevertheless split over how best to make

that determination. See Pat Fackrell, A Call to Clarify the “Scope of Authority” Question of Qualified

2 As in Wyatt and Richardson, the case has proceeded on the (un-

contested) assumption that Baker Donelson was a state actor.

Whether Baker Donelson is in fact a state actor is not before the

Court, and nothing in this brief depends on the answer: Wyatt

and Richardson both denied qualified immunity to defendants

who were, or were assumed to be, state actors.

17

Immunity, 68 Clev. St. L. Rev. 1, 11–21 (2019) (contrasting the different approaches used). As the Fifth

Circuit recently noted, this Court “has not clarified

the proper approach.” Diaz v. Cantu, 123 F.4th 736,

749 n.12 (5th Cir. 2024).

More problematic are the courts of appeals that

fail to apply the threshold scope of authority requirement at all. Stanley, 852 F.3d at 1215 (“No binding

precedent of this court has adopted the scope-of-authority exception to qualified immunity.”); Cummings

v. Dean, 913 F.3d 1227, 1245 (10th Cir. 2019) (applying qualified immunity without addressing the scope

of authority inquiry); Central Specialties, Inc. v.

Large, 18 F.4th 989, 1001–1003 (8th Cir. 2021)

(Grasz, J., concurring in part and dissenting in part)

(the majority misapplied qualified immunity to an official who acted outside any delegated authority); Pet.

for a Writ of Cert., Central Specialties, Inc. v. Large,

cert. denied, 143 S. Ct. 369 (2022) (No. 21-1552).

Like most circuits, the Sixth Circuit does not reject

this inquiry—it has long assigned defendants “the initial burden of coming forward with facts that show

they were acting within their discretionary authority

at the time in question.” Mackey v. Dyke, 29 F.3d

1086, 1095 (6th Cir. 1994). Yet by holding that Baker

Donelson’s “ability to manage its staff undoubtedly

fell within its discretionary powers” simply because

the firm “served as outside counsel for Nashville,” Pet.

App. 10a–11a, the Sixth Circuit has nonetheless

joined the Eighth and Tenth Circuits in rendering the

scope-of-authority question a nullity.

18

In addition to being a “recurring issue” that has

split the courts of appeals in at least three directions,

Stanley, 852 F.3d at 1214, this issue is also of profound importance. As this Court has repeatedly explained, the application of qualified immunity comes

at a heavy price, as it prevents “the only realistic avenue for [the] vindication of constitutional guarantees.” Anderson v. Creighton, 483 U.S. 635, 638 (1987)

(citation omitted). This Court has nevertheless determined that ensuring effective government outweighs

the harm associated with denying accountability for

government abuses in certain circumstances and has

limited qualified immunity’s scope and reach to “accommodate[] these conflicting concerns.” Ibid. Importantly, and as this Court itself has recognized, expanding the doctrine’s scope beyond its “defin[ed] limits” would “provide [a] license to lawless conduct.”

Harlow, 457 U.S. at 819.

Because clearly established law must be defined

with a high “degree of specificity,” Mullenix v. Luna,

577 U.S. 7, 13 (2015) (per curiam), the actors least entitled to qualified immunity—those operating outside

any delegated authority—are the ones most likely to

receive it because fact-specific precedent is rarest

where conduct is unauthorized. Dispensing with the

threshold inquiry thus “implicitly cloak[s]” ultra vires

actors with “near-absolute immunity for their actions

since there are no existing cases circumscribing or defining the scope of” their supposed authority. Central

Specialties, 18 F.4th at 1001 (Grasz, J., concurring in

part and dissenting in part). See Part II.B, infra.

19

This Court should therefore grant the petition to

(1) reaffirm that qualified immunity only applies to

the official, discretionary acts of those who are working for the government in pursuit of government objectives, and (2) help resolve the circuit split on this

issue by clarifying the proper approach for making

that determination.

II. Private parties’ entitlement to qualified immunity when carrying out the public’s business must be bound by the clearly established law governing public officials.

After expanding qualified immunity’s scope to

cover a private party’s private acts, the Sixth Circuit

compounded that error in its clearly established law

analysis. Having held that Baker Donelson was performing government work and therefore entitled to

the same immunity as government officials, the court

then pivoted to the firm’s private status and private

motivations when determining whether prior caselaw

gave notice that its conduct was unlawful. Thus, the

court held that Baker Donelson did not violate clearly

established law because no prior case had established

that a private law firm violates the First Amendment

when it fires an employee to appease the demands of

a government client. Pet. App. 24a. That conduct, the

court reasoned, was driven by the firm’s business interests rather than by a desire to punish Mr. DeLanis

for his speech. Ibid.

Taken together, the Sixth Circuit has adopted the

following test in cases involving private parties and

qualified immunity. First, when a private party performs some government work, that fact alone suffices

20

to entitle the private party to qualified immunity for

purely private conduct that falls outside the scope of

its limited government work. Second, for purposes of

the clearly established analysis, the court then pivots

to defining the private party exclusively by its private

motivations. And because qualified immunity has

never been recognized as extending to private parties

pursuing their private interests, it will be all but impossible for a challenger to identify an existing case

that suffices to provide notice for purposes of the

clearly established prong.

The Sixth Circuit’s new test thus inexplicably

gives private parties a stronger form of immunity

than the immunity available to their public-sector

counterparts. The panel majority below made no attempt to explain this bizarre result, which is at war

with every aspect of the doctrine’s policy purposes and

underlying justification. This Court should remedy

that error by making clear that the clearly established

law standard must apply equally to public officials

and those private parties who carry out public business. Part II.A explains why this is so. Part II.B discusses how the panel’s contrary rule is self-perpetuating: because clearly established law is case-specific,

the private-status distinction will always be available, and private defendants will enjoy a stronger immunity than the public employees whose immunity

they borrow.

A.

The same immunity means the same

clearly established law.

To the extent qualified immunity applies to private actors performing government work, their

21

private nature cannot control whether the law is

clearly established. In other words, private parties

who are retained by the government to help “carry out

the public’s business” are entitled only to “receive the

same immunity enjoyed by their public employee

counterparts.” Filarsky, 566 U.S. at 390–391 (emphasis added). That immunity protects those engaged in

government work from liability unless their conduct

violated “clearly established law.” Ziglar, 582 U.S. at

151. Just as the distinction between traditional, fulltime government employees and those who “work[] for

the government on something other than a permanent or full-time basis” was held irrelevant for purposes of asserting the immunity, Filarsky, 566 U.S. at

380, 390–394, so too is that distinction irrelevant for

determining whether the conduct of those engaged in

government work violated clearly established law.

The Sixth Circuit sees things differently, however.

That court’s new rule first errs by applying qualified

immunity far too broadly, as discussed above. The

court’s new rule then magnifies that initial error by

treating a state actor’s private party status as a novel

context for purposes of determining whether the conduct violates clearly established law. In other words,

the court treats what should be an immaterial distinction as the basis for bestowing upon private parties

an even stronger form of immunity than what traditional government employees receive.

Accordingly, the Sixth Circuit first held that Councilman Mendes could be liable under Section 1983 for

his alleged conduct of directing Baker Donelson to fire

Mr. DeLanis, as “causing an employee’s firing due to

22

his protected speech” “violated clearly established

law.” Pet. App. 20a–21a. But the court then employed

a much different analysis when assessing Baker Donelson’s conduct. There, the court focused exclusively

on the firm’s (previously irrelevant) private status

and motivations to hold that the firm’s decision to fire

Mr. DeLanis at the urging of Nashville officials “present[ed] a unique situation not addressed by [Sixth

Circuit precedent] to date.” Pet. App. 24a. Specifically, the court held that Baker Donelson fired Mr.

DeLanis “to protect its client base” and “not to punish

DeLanis for his speech.” Ibid. And given that (prior to

this ruling), private actors pursuing their private

“business interests” in this manner were not entitled

to invoke qualified immunity in the first place, the

court noted that there was “no free-speech case that

covers this unusual setting.” Ibid. Consequently,

Baker Donelson received the protection of qualified

immunity denied to Mendes, even though the firm’s

alleged conduct—firing Mr. DeLanis for his protected

speech—was an unquestionably more adverse action

than the alleged mere encouragement that sufficed to

hold the councilmember liable. Pet. App. 19a–24a.

That distinction, however, rests entirely on motive.

Yet the panel had already held, in rejecting Mr. DeLanis’s subjective-intent argument, that “the Supreme

Court abandoned a subjective approach to qualified

immunity decades ago.” Pet. App. 12a. Harlow’s objectivity, however, runs in both directions. If it is true

that allegations of malice cannot defeat immunity,

then it must be equally true that a benign motive cannot establish it.

23

If motive is relevant at all, that is because retaliatory intent is an element of the underlying First

Amendment claim, not of the immunity analysis. See

Crawford-El v. Britton, 523 U.S. 574, 588–589 (1998).

So the firm’s professed business motive was off-limits

in the immunity analysis under Harlow, while the retaliatory motive Mr. DeLanis pled was an element to

be credited at this stage. Motive could not supply a

ground for immunity. It did satisfy an element of the

retaliation claim. Motive helps petitioner twice over.

B.

Because clearly established law is casespecific, the lower court’s rule creates a

self-perpetuating shield for private defendants.

This approach is particularly damaging because

courts will always be able to point to the profit motive

of private individuals retained by the government as

a unique factor not present in the clearly established

law governing public officials. Thus, if left undisturbed, the decision below will frustrate accountability and deny liability even when it is clearly established that the alleged conduct is unlawful, provided

that the state actor is someone other than a full-time,

permanent government employee. This is not the

“same immunity” afforded to traditional public employees but is instead the very “license to lawless conduct” this Court once promised would never come to

pass. Harlow, 457 U.S. at 819.

The courts of appeals are already “intractably”

“divided” over how to determine what constitutes

“clearly established law” for purposes of Section 1983

24

and qualified immunity. Zadeh v. Robinson, 928 F.3d

457, 479 (5th Cir. 2019) (Willett, J., concurring in

part). Indeed, the failings of the “clearly established

law” test as it presently exists warrant this Court’s

intervention at the earliest opportunity. Id. at 480 &

nn.61–62 (a “growing, cross-ideological chorus of jurists and scholars” is “urging recalibration of contemporary immunity jurisprudence”). The last thing the

doctrine needs is yet another “[h]eads government

wins, tails plaintiff loses” rule. Id. at 480. If private

parties engaged in the performance of government

work are entitled to assert the same qualified immunity as public employees, they must be bound by the

same body of clearly established law.

CONCLUSION

Expanding the scope of qualified immunity to encompass conduct other than public service frustrates

the purpose of Section 1983, contradicts this Court’s

precedent, and operates as a license to lawlessness.

The petition for a writ of certiorari should be granted.

Respectfully submitted on August 6, 2026,

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

ANYA BIDWELL

Counsel of Record

PATRICK JAICOMO

ROBERT FELLNER

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

25

CASEY NORMAN

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Dr.,

Ste. 300

Arlington, VA 22203

(202) 869-5210

casey.norman@ncla.

legal

J. MARC WHEAT

TIMOTHY HARPER

ADVANCING AMERICAN

FREEDOM, INC.

801 Pennsylvania Ave., N. W.

Ste. 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Counsel for Amici Curiae