Filarsky v. Delia

• Decision Date: 17 April 2012
• Docket Number: No. 10–1018.,10–1018.
• Citation: 182 L.Ed.2d 662,132 S.Ct. 1657,566 U.S. 377
• Parties: Steve A. FILARSKY, Petitioner v. Nicholas B. DELIA.
• Court: U.S. Supreme Court

566 U.S. 377

132 S.Ct. 1657

182 L.Ed.2d 662

Steve A. FILARSKY, Petitioner

v.Nicholas B. DELIA.

No. 10–1018.

Supreme Court of the United States

Argued Jan. 17, 2012.

Decided April 17, 2012.

Patricia A. Millett, Washington, DC, for Petitioner.

Nicole A. Saharsky, for the United States, as amicus curiae, by special leave of the Court, supporting the Petitioner.

Michael A. McGill, Upland, CA, for Respondent.

Jon H. Tisdale, Jennifer Calderon, Gilbert, Kelly, Crowley & Jenett LLP, Los Angeles, CA, Amit Kurlekar, Akin, Gump, Strauss, Hauer & Feld LLP, San Francisco, CA, Patricia A. Millett, Counsel of Record, James E. Sherry, James E. Tysse, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, Barry Chasnoff, Akin, Gump, Strauss, Hauer & Feld LLP, San Antonio, TX, for Petitioner.

Dieter C. Dammeier, Michael A. McGill, Counsel of Record, Michael A. Morguess, Christopher L. Gaspard, Carolina Veronica Cutler, Lackie, Dammeier & McGill APC, Upland, CA, for Respondent.

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 individuals 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 because 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 of Delia's extended absence, and hired a private investigation 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 investigation interview. The City hired Steve Filarsky to conduct the interview. Filarsky was an experienced employment lawyer who had previously represented the City in several investigations. Delia and his attorney attended the interview, along with Filarsky and two fire department officials, Mike Peel and Frank Bekker. During the interview, Filarsky questioned Delia about the building supplies. 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 recommended asking Delia to produce the building materials. Chief Wells approved the plan.

When the meeting resumed, Filarsky requested permission 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. Unable 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 objection proved unavailing, Delia's counsel threatened to sue 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 individual 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 spelling 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 materials, which Chief Wells signed.

As soon as the interview concluded, Peel and Bekker followed Delia to his home. Once there, Delia, his attorney, 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 protected 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 [his] house." Delia v. Rialto, No. CV 08–03359 (C.D.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 employee, 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 (C.A.9 2003) ).

Filarsky filed a petition for certiorari, which we granted. 564 U.S. ––––, 132 S.Ct. 70, 180 L.Ed.2d 939 (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. Anyone whose conduct is "fairly attributable to the state" can be sued as a state actor under § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (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 (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 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). Our decisions have recognized similar immunities under § 1983, reasoning that common law protections " ‘well grounded in history and reason’ had not been abrogated ‘by covert inclusion in the general language’ of § 1983." Imbler v. Pachtman,

424 U.S. 409, 418, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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 determining whether this distinction is valid, we look to the "general principles of tort immunities and defenses" applicable at common law, and the reasons we have afforded protection from suit under § 1983. Imbler,supra, at 418, 96 S.Ct. 984.

A

Under our precedent, the inquiry begins with the common law as it existed when Congress passed § 1983 in 1871. Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). Understanding the protections the common law afforded to those exercising government power in 1871 requires an appreciation 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 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...