FILARSKY v. DELIA

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, Washington, 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

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No. 10–1018

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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 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 (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 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 (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. 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 (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 (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 –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 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.

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 (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 Wisconsin . . . totaled five workers if we count the lieutenant governor 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 compensation 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 significant extent, government was “administered by members of society who temporarily or occasionally discharge[d] public functions.” Id., at 228. Whether government relied primarily 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 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 prosecution was often carried out by a mixture of public employees 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., Commonwealth v. Knapp, 10 Mass. 477, 490–491 (1830); Chambers v. State, 22 Tenn. 237 (1842). And public prosecutors themselves continued to represent private clients while in office—sometimes creating odd conflicts of interest. 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 malicious 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 defendant in a malicious prosecution suit against the complaining witness).

This mixture of public responsibility and private pursuits extended even to the highest levels of government. Until the position became full-time in 1853, for example, 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 pension 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 Hayburn’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 adjudicative 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 generally 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 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 employed patrol personnel often were publicly appointed as special policemen, and the means and objects of detective work, in particular, made it difficult to distinguish between those on the public payroll and private detectives.” 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, Commentaries 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. 1018, 1019 (1893) (“A member of a posse comitatus summoned 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 execution of the duties of their office, are under the strong protection of the law; and their legally summoned assistants, for such time as in service, are officers of the law”); Reed v. Rice, 25 Ky. 44, 46–47 (App. 1829) (private individuals 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 temporary or occasional basis are as varied as the reach of government itself. See, e.g., Gregory v. Brooks, 37 Conn. 365, 372 (1870) (public wharfmaster not liable for ordering removal 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); McCormick 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 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, immunity 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 immunity “protect[s] government’s ability to perform its traditional 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 candidates are not deterred from public service, and preventing the harmful distractions from carrying out the work of government that can often accompany damages suits. Richardson v. McKnight, 521 U. S. 399 –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 decisiveness 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 also to others acting on behalf of the government similarly serves to “ ‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.’ ” Richardson, supra, at 408 (quoting Wyatt, supra, 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 example: 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 engagements if they do not receive the same immunity enjoyed 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 accepting a government assignment.

The public interest in ensuring performance of government 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 employees 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 testify, given their roles in the dispute. Allowing suit under §1983 against private individuals assisting the government 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 relationship with the government also creates significant line-drawing problems. It is unclear, for example, how Filarsky 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 “reasonably 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 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 declared 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 support 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 enhancing 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 using the mechanisms of government to achieve their own ends, individuals working for the government in pursuit of government objectives are “principally concerned with enhancing the public good.” Ibid. Whether such individuals have assurance that they will be able to seek protection if sued under §1983 directly affects the government’s ability to achieve its objectives through their public service. 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 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 government, undertak[ing] that task for profit and potentially in competition with other firms”—combined sufficiently to mitigate the concerns underlying recognition of governmental 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 employee, Filarsky was retained by the City to assist in conducting an official investigation into potential wrongdoing. 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 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.

SUPREME COURT OF THE UNITED STATES

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No. 10–1018

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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 immunity” 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 government body, serving as an adjunct to government in an essential governmental activity, or acting under close oficial 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 supervision of City employees. Whether Filarsky was supervised by those employees, and did not himself do the supervising, 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 individuals 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 –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 coordination with government employees. For example, Richardson’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 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.

SUPREME COURT OF THE UNITED STATES

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No. 10–1018

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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 reversed. Qualified immunity may be overcome, however, if the defendant knew or should have known that his conduct 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 consider 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 investigate 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. 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 recommended this course, the Ninth Circuit observed, mindful 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 investigation 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 recounted by the Court of Appeals. “At the onset of the interview,” 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 involuntary 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 presumptively 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 person under investigation to cart his personal property out of the house for inspection? 2 And if it is “clearly established” 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 providing 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 –211 (1946) (subpoena duces tecum for a corporation’s business records, authorized by §9 of the Fair Labor Standards Act, encountered no Fourth Amendment shoal).

3  The Ninth Circuit referred to cases holding that public employees’ job retention cannot be conditioned on relinquishing the Fifth Amendment’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) .

Print this transcript Transcript: 

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next this morning in Case 10-1018, Filarsky v. Delia.

Ms. Millett.

Ms Millett: Mr. Chief Justice and may it please the Court:

When a private attorney is temporarily retained by the government to work in coordination with or under the direct supervision of government employees in fulfilling the government's business, in getting the government's work done, that attorney is entitled to the same immunity that a government employee performing that same function for that same government would receive.

In this case that is qualified immunity.

That rule comports with the history and policy concerns that have animated this Court's section 1983 and immunity jurisprudence.

Justice Ruth Bader Ginsburg: Is that across the board, Ms. Millett, the rule you just stated?

Is there any situation in which a private attorney engaged to assist a government office in the performance of a public function would lack qualified immunity?

Or is it simply whenever a government agency employs a private attorney to assist it in doing its work that attorney will have qualified immunity?

Ms Millett: I think it -- it may well be the latter rule, the more broader one, but for these purposes, the Court only needs to decide the situation when they are working in -- in coordination with or under direct supervision of government employees.

And I want to clarify that answer, because how one defines doing a public service -- for example, if a State government appoints somebody to represent one of their police officers who's been sued in a 1983 action, if there is five defendants the attorney general can't represent them all, they will commonly appoint people and will pay them, some States will pay them from the State fisc.

So they will be paid by the government to perform a governmental function in that sense, but their allegiance there is to the individual employee, not to the government.

The same with public defenders.

So there are certain situations where someone can be retained by the government in that sense, paid by the government in that sense.

Justice Samuel Alito: Why does it matter whether the privately retained attorney works in close cooperation with government employees?

Suppose in this case Mr. Filarsky had simply been hired to go off and perform this investigation, and at the end of the investigation report the results to the town?

Would the case come out differently then?

Ms Millett: I don't think that would, but in this -- but I think it depends on what one means by coordination with or supervision.

And with respect to attorneys, attorneys can never be an independent contractor in relationship to their client in the way the prison was in Richardson.

Attorneys just can't be.

They are always, in the sense of the rule that I'm using it, working for their client agency, their client government, and under its control and authority.

And the decisions they make are the decisions of that client.

And that's why the whole -- the whole reason we should have this rule is understanding what immunity protects.

It protects government decisionmaking, governmental conduct, and its ability to maneuver with an area -- in an area of reasoned decisionmaking.

Justice Anthony Kennedy: And I suppose -- I suppose you can argue that there is a built-in limitation because the question doesn't even come up unless there is State action.

So there has to be close enough cooperation so there is State action.

I had never thought that when a private attorney gives an opinion letter to a government agency or government entity at its request that there is any State action there at all.

So that question -- so there the question just wouldn't even come up; am I correct?

I assume--

Ms Millett: Right.

Certainly the State action limitation both limits the operation of this rule.

There's many times attorneys or others who work with the government will not implicate the State action rule.

And that's sort of the irony of -- of this case, and I think it would not be uncommon in attorney cases.

The only reason this was a tort, or an alleged tort, is because the government was involved, because governmental actors took his advice, conducted a search -- he didn't -- issued an order -- he didn't.

And yet we have -- we're left in this is odd world where the only way this tort, constitutional tort lawsuit, can go forward is without the government.

Now, 1983 is about deterring governmental conduct, but this Court's immunity jurisprudence says we don't over-deter and we want to allow the government to operate within a realm of reasoned decisionmaking.

And they need to operate within that realm, get reasoned advice and make reasoned decisions, regardless of whether the source of the advice is a temporarily or permanently retained attorney.

The need is for reasoned decisionmaking.

And if you over-deter, which is what an action against a private attorney who is now charged with litigating and defending the government's allegedly unconstitutional conduct, standing all alone while all the government actors have walked away, that turns section 1983 on its head.

Chief Justice John G. Roberts: But your test -- and this is, I think goes broader than the articulation of the test -- doesn't give this private attorney much assurance by itself.

It's sort of a multifactor, is he is coordinating, is he under the supervision, is he really doing public service?

I mean, if the idea is to give him sufficient breathing room so he doesn't stop, and when, as in this case, he is threatened that we are going to sue you if you do this, he has to think, well now, am I being supervised by the government?

Am I coordinating with the government?

Or I -- am I telling them what -- it -- the -- the test itself undermines the asserted purpose.

Ms Millett: Well, two responses to that.

First of all, the State law requirement, the State action requirement that Justice Kennedy referred to, will up front require allegations by the plaintiffs that will discuss the coordinated, presumably the coordinated action, because there has to be some level of coordination.

But the second reason is, as I said, with respect to attorneys, I don't think this is going to be a hard question, because they are forever agents and fiduciaries.

They can never be the independent contractor that you had in Richardson.

They are always answerable to and working for their governmental client.

And when I say supervision here, I don't think the test here is -- is an on-hands, day-to-day looking over your shoulders.

The government has to be able to get the advice of professionals and to trust them--

Justice Samuel Alito: Suppose -- suppose the government hires an attorney to do an independent investigation; it hires an outside attorney precisely because it does not want to be faced with allegations that it has manipulated the outcome of the investigation because its own conduct is at issue.

So they say, you are going to be independent, hands-off, we are not going to interfere at all.

But that would still in your -- in your submission satisfy the coordination requirement?

Ms Millett: --It -- it would in this sense, because there would be -- and I am assuming here we are not talking like a Bivens appointment or something like that.

But here -- because understand what happens in that situation.

They are being appointed to investigate for the government and on behalf of the government.

And it's not usually because we say the government writ large may have done something that would create a conflict.

It may be an individual employee or something, that's when the conflict comes.

But they are working for the government.

The government is their client.

They are not freewheeling independent contractors.

And--

Justice Samuel Alito: What is the difference between that and the prison situation?

The private prison -- the guard in the private prison is performing a function that has been delegated to that or assumed by that entity pursuant to a contract.

I don't understand exactly what the difference is.

Ms Millett: --The difference is -- there is a practical difference and then a legal doctrinal difference.

The practical difference is that in Richardson it was a quite unique situation where the government really had washed its hands of the prison operations.

It had put the day-to-day operation of the prison, the decisionmaking of the prison, how we treat the prisoners entirely in the hands of a private contractor, subject only to what this Court said was very limited supervision, essentially in contract terms.

But it had ceded that authority and it did not exercise the control.

It did not exercise the day-to-day decisionmaking.

And that's where we get into the doctrinal point.

So the decisions that were being made there, and that were -- the lawsuit concerned, there wasn't a single governmental defendant named in that case.

It was just simply the private -- the private guards that were at issue there.

And the decisions that were made were the private company's decisions.

And so this Court said there, that's not what qualified immunity is out -- is out to protect.

It is to protect what, the government's decisionmaking, the special concerns that arise when you are bringing lawsuits that are designed to regulate, limit, deter governmental decisionmaking.

We have to protect that area of reason.

If the government's not making the decision, they have passed the buck, they have handed it off, then there is nothing to protect.

Justice Sonia Sotomayor: Why isn't that the case here?

Ms Millett: I'm sorry?

Justice Sonia Sotomayor: It seems to me that there is enough evidence that the lawyer was the one who held the investigation; the people who attended the meeting between the lawyer, the Respondent, and the other personnel that were there were acceding to what he was doing.

The chief -- he goes to the chief and he says: I want you to do this.

And the chief is relying on him, not his own independent judgment, to issue the command that's contested here.

So, that sort of puts your argument on its head, because it appears that he was more the independent investigator than he was--

Ms Millett: No--

Justice Sonia Sotomayor: --the individual under the control of the agency.

Ms Millett: --First of all -- a couple of responses.

First of all, no, that's nothing like Richardson.

This was the government's investigation.

They initiated it.

They brought him on to the team for his expertise, much like prosecutors might bring on a psychologist to evaluate a criminal defendant.

Now, are the prosecutors going to sit there and say, you know, psychologist, you should ask this question, or are they going to defer to the medical expertise?

That's--

Justice Sonia Sotomayor: This argument seems to fall under what Justice Scalia termed the functional test, that he's serving just like any other government lawyer.

If you are going to fit this case under the Richardson majority test, how would you do it?

Ms Millett: --I do that -- first of all I'm putting it right in -- in Richardson's language, which said it was reserving this very question, and that is, when an attorney or any individual who's working in close coordination or under the supervision of government officials in the performance of an essential function.

And so that makes clear that Richardson was deciding not that situation, the handed-off turnkey situation.

This -- there's no turnkey here.

This is Mr. Filarsky being brought onto the team.

Justice Antonin Scalia: So -- so independent counsel would not be covered.

I mean, if you have a -- you know, a counsel appointed because -- to show that the administration is disinterested in this prosecution and you get independent counsel, the Attorney General says: I will not interfere with him.

The President says: I will not interfere with him.

Then him you can sue without any immunity, right?

Ms Millett: No.

In that--

Justice Antonin Scalia: Why?

He's not working in close coordination.

He's not subject to supervision.

The whole purpose of an independent counsel is to eliminate supervision.

Ms Millett: --Yes, but independent counsel still sued in the name of the United States.

Their client was the United States Government.

That is whom -- that is the interest in which they worked.

They were -- they had a client that they were answerable to.

They were not freewheeling independent contractors; they were attorneys with a client.

Justice Antonin Scalia: Excuse me.

Weren't the prison guards who were -- who were suable in Richardson, weren't they suable under 1983 as acting under color of law?

Ms Millett: This Court assumed that question but did not answer it in that--

Justice Antonin Scalia: Well, the -- the whole issue would have been a nonissue if they -- if they couldn't be sued.

Ms Millett: --This part assumes -- I think it's fair to assume when you're operating a prison, although I think to -- there's a reason this Court reserved it, because the question there is -- with certainly the corporation was under color of law, whether the individuals who worked for the corporation would also be under the color of law.

Justice Antonin Scalia: Don't you think the -- the two should go pari passu, as we say, that if you can be sued for acting under color of law you ought to have the defenses that people who were acting with legal authority have?

Ms Millett: Well, this Court's already crossed that bridge in cases like Wyatt, where, for example -- and it does -- because the State law requirement can sweep broadly in some situations.

So I don't think in a situation like Wyatt v. Cole, where you have private plaintiffs pursuing a private agenda and they simply invoke a State law, that that makes them integrated with the government in the way that an attorney is, and certainly the way Petitioner was here, that they're not part of the governmental team, and they're not making -- they weren't making decisions in the interest of the government.

There was no governmental decisionmaking to protect there, and that's what -- the rationale this Court gave for denying qualified immunity in Wyatt.

The key here is that this is exact -- you cannot protect governmental decisionmaking in this context without protecting the source of advice for that decisionmaking--

Chief Justice John G. Roberts: Lawyers -- lawyers are not supposed to be cowed by the exigencies of the situation.

We're worried in qualified immunity with protecting governmental actors, to make sure they will feel comfortable doing the right thing rather than being intimidated in the situation we had here.

Lawyers have that professional obligation in the first place.

So why does a lawyer need the -- the defense of qualified immunity?

Ms Millett: --There are a couple of reasons.

First of all, that rationale would mean no government lawyers get the protection either, because they have that exact same obligation of fealty, and we don't apply that rule.

That hasn't even been questioned.

And the reason we don't is we understand that this is a more layered inquiry into timidity.

First of all, we don't even want the subconscious pressures that would come with full freight liability for governmental conduct to any angry third party even subconsciously interfering with the decisions of government lawyers temporarily or permanently retained.

Secondly, we want the government to be able to get the advice, to be encouraged to get the advice.

Section 1983 must support governments getting legal advice to counsel them in complying with the law that section 1983 enforces, but government will be deterred from obtaining legal advice if the costs of getting an attorney -- especially if you're a small town, municipality, county, you don't -- can't afford a full-time staff, and the cost of getting an attorney is all those things that qualified immunity wanted to protect against.

Our decision -- reasonable decisionmaking that we thought was protected by qualified immunity is now on trial.

And we have to be there as witnesses, and the jury is going to assess liability for a reasonable governmental decision.

Justice Elena Kagan: Ms. Millett, our cases have said that we're supposed to look not only to policy but also to history.

Would you disagree with the premise that a person in your client's position historically would have had at most an actual malice -- a malice defense, or a reasonable cause defense?

Would a person have anything more than that?

Ms Millett: They would have had the same sort of good faith defense that this Court in Harlow turned into qualified immunity.

Both those lawyers--

Justice Elena Kagan: But in Wyatt, we said that that was a very different kind of immunity than the Harlow immunity, and we said historically it provided no basis for giving Harlow immunity.

Ms Millett: --It -- it -- the Harlow immunity came from the same root.

What happened in Wyatt was we said we will turn that into protection for the government when we need to protect the special functioning of government.

You had no need -- the Court had no need to do that in Wyatt because there was no governmental decisionmaking at stake there.

But the -- the same type of defense -- this Court recognized--

Justice Elena Kagan: So I take it your answer is, yes, it would only have been a malice defense, but that doesn't matter, notwithstanding Wyatt.

Is that your answer?

Ms Millett: --The answer -- the answer is that it is the same type of defense that this Court recognized in prior cases as supporting qualified immunity when needed to protect the decisions of the government.

And Richardson itself recognized that--

Justice Elena Kagan: Doesn't that suggest really that we don't have a historical test any more, that really all we're looking to is policy considerations?

Ms Millett: --Not this case at all, because you've got layers.

You have layers of government -- of history.

You have the history recognized in Richardson for -- for lawyers who are working at the behest of the government, that specific history.

You have the general history where -- where attorneys were provided a reasonable and good-faith, malice and probable cause type of defense, which again is the type of -- the type of defense that gets turned into qualified immunity when needed to protect government's reasoned decisionmaking.

If I could reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Ms. Millett.

We'll hear from Ms. Saharsky first.

Michael A Mcgill: Oh.

I'm sorry.

Chief Justice John G. Roberts: That's all right.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ms Saharsky: Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner may assert qualified immunity on the same terms as the fire department officials, because he was working side-by-side with them and under their supervision on a personnel investigation.

And this is really exactly the situation that the Court reserved and anticipated in Richardson, that when you have a situation where private and government workers work closely together and you deny qualified immunity to the private person, it would directly affect the ability of the government employees to do their jobs.

Chief Justice John G. Roberts: So if they don't work closely together at all and it's just this one fellow conducting the investigation, he wouldn't have qualified immunity?

Ms Saharsky: No, this is a situation in which there's a very close working relationship--

Chief Justice John G. Roberts: I'm sorry?

No, I'm wrong, or no--

Ms Saharsky: --He likely would have qualified immunity.

The closeness of the relationship is very apparent here, but as a general matter it is our position that when people are doing the business of government, private people, can be sued under section 1983 or Bivens, there should be a presumption in favor of qualified immunity.

And Richardson is not to the contrary, because that is a fairly unique case in which the private prison was so removed from the day-to-day workings of government officials that it would not have furthered the purposes of qualified immunity to give qualified immunity to the folks in those situations.

So what we're talking about--

Justice Anthony Kennedy: It's -- it's just hard to imagine anything more imbued with State action than imprisoning someone.

That's -- that's the problem I have in thinking about the case.

Ms Saharsky: --Right.

I mean, several members of the Court said that in Richardson.

And the -- the Court's opinion really talked about the uniqueness of the situation there, that Tennessee was doing something really out on the forefront in terms of giving the day-to-day decisionmaking to the folks in that situation in the private prison, and only checking up.

There was monitoring, you know, annually.

It was really not much ongoing monitoring at all.

And the -- the Richardson Court, you know, found that to be a unique situation, but it distinguished the situation that you have here, where--

Justice Elena Kagan: Wasn't Richardson really all about how market forces would make immunity unnecessary?

And how is it that market forces play any different role in this case than they do in Richardson?

Ms Saharsky: --Well, we understand the Court's discussion of market forces to be really important in the context there, where you don't have individuals who are working closely with government.

The Court needed and the purposes of qualified immunity wouldn't be served in terms of deterrence and in ensuring good government decision making.

But the market forces discussion was the Court reassuring itself in those circumstances that there would still be private prison companies that would be willing to take on the business of government and would be able to do it, you know, consistent with the Constitution.

So we don't understand the Court to have been setting out market forces as a test for qualified immunity, because, as your question seems to suggest, taken to its logical conclusion, any time a private person is being hired by the government, you could say, well, there is a market for the person, couldn't someone else fill those shoes, et cetera, et cetera.

So we think the Court's market forces decision was fairly confined to what the Court itself described as the unique situation in Richardson.

And the Court's--

Justice Elena Kagan: Do you think market forces do operate differently here, or is it basically the same thing?

Ms Saharsky: --We do think that there is a difference in that the attorney in this situation has private clients that that attorney can work for, whereas the private prison company really could only work for the government.

But--

Justice Ruth Bader Ginsburg: I thought that in this case the firm the lawyer was associated with said its dominant business was giving advice to local governments, local municipal governments.

Ms Saharsky: --Yes.

I mean, that was an important part of the firm's business.

But Mr. Filarsky is trained as an employment lawyer and has, you know, broad training and expertise in employment-related matters.

So there is certainly other work that could be done.

But, you know, we thought the core of the Court's decision in Richardson was really focusing on the purposes of qualified immunity and whether they would be furthered by giving them to the private prison and the private prison guards.

And the Court--

Justice Antonin Scalia: You seem to assume or to acknowledge or to concede that market forces do not operate for government employment, that all government employees are doing it out of love?

I mean, why does market force eliminate this defense for somebody who is an employee of a private company but not for somebody who is an employee of the government?

Ms Saharsky: --I'm sorry, Justice Scalia, I didn't mean to suggest that we thought that the market forces inquiry was particularly relevant to answering the qualified immunity question.

I am just explaining that the way we read the Court's opinion in Richardson, which obviously the members of this Court are the experts on, is that the Court was looking to market forces to reassure itself after it determined that the purposes of qualified immunity just wouldn't be served by giving an organization that was so far removed from the day-to-day workings of government the protection of qualified immunity.

The Court just -- the market forces really was just something unique to that case.

And what we think is the most relevant is what the Court started with both in the decision in Wyatt and in Richardson, which is, is it necessary to give qualified immunity here to make sure there is principled and fearless government decisionmaking.

It's the business of government that's important.

And in this case, although Petitioner is an attorney who has his own fiduciary obligations, it is certainly the case that when he was threatened during the conduct of this personnel investigation that that is something that potentially could chill his behavior.

And to the extent that he cabins the advice that he gave to the fire department officials, that affects the ability of government to do their job.

And I might give the Court--

Justice Sonia Sotomayor: Well, that would be a breach of his duty as an attorney.

Ms Saharsky: --I'm saying--

Justice Sonia Sotomayor: And he would be subject to malpractice in that case.

You -- seriously, I find this whole argument about market forces with respect to attorneys representing people odd, because there is a whole slew of unemployed lawyers who would be happy to take on any government service they can.

So going back to the -- that's -- what I consider the central argument you are making, which is: will it chill advice?

And I'm not sure how it can, given the independent fiduciary duty that an attorney has to zealously guard his or her client's interest.

Ms Saharsky: --I'm saying that an attorney is in a difficult position there, and it's the same position that a government attorney would be in, and the Court has extended qualified immunity to government attorneys who are in this position, either giving legal advise, like in the Burns case, or serving as prosecutors.

And there is just no difference when he is operating in this case that would make him distinguishable from a government attorney.

To answer another suggestion, I think, in your question, the Court talked about in terms of deterrence and chilling, making sure that there were talented candidates who wanted to take on the position of government.

So the Court has never said, you know, we are concerned about wiping out the market entirely.

It said, you know, if there is a segment of the market that will not take on this business anymore, that's a fairly serious problem when we need to make sure that the government business is done.

And if I can just make -- give the Court another example to, perhaps outside the context of this case, see how a private person being denied qualified immunity would affect government employees.

Consider a fire department that has some full-time fire department personnel and also some volunteer firefighters.

When they are working together and fighting a fire, you don't want the volunteer firefighter thinking: Should I break down this door?

I may face personal liability.

You want him to make fearless decisions because whether he breaks down the door or not is going to directly affect the ability of the other folks who are trying to go into those homes, trying to stop the fire, to do their jobs.

That would also be true in the context of court security.

The United States Marshal Service sometimes uses private security guards and we have direct supervision and control over them, but--

Chief Justice John G. Roberts: --What if it's a 100 percent purely volunteer fire department?

I mean, the town, whatever, contracts, out-sources, whatever, but it's just run by volunteers.

Is your answer the same?

I'm trying to get at your point about they're working with or coordinating with government employees.

And your argument seems a little derivative.

You are saying the whole point is to protect the government employees and you have to have qualified immunity for the non-employee to do that.

But does your argument apply when there are no government employees around?

Ms Saharsky: --It is just difficult in the fire department situation, even if there is an all-volunteer force, that there wouldn't be some type of direct supervision by the mayor, by the city council, et cetera.

You know, that's -- particularly in the local government situation, those folks would tend to work fairly closely together.

It is, in the case of deterrence and wanting fearless decisionmaking, a primary concern that we have about protecting government.

But we need to protect the individuals to protect government.

So we do need to make sure that their decisions aren't chilled, that persons like Petitioner are willing to take on representation of this kind.

And the Ninth Circuit suggestion that no private person should be -- should get qualified immunity, even when they are doing the day-to-day business of government, is just one that can't be reconciled with this Court's decisions in Wyatt and Richardson.

Justice Ruth Bader Ginsburg: The other part of qualified immunity, and I know it's not teed up in this case, but why is it reasoned decisionmaking to recognize you can't enter a home without a warrant but you can tell the occupant to bring out every item you want to see?

It seems to me that it's not -- that there's clearly established law to say that's wrong.

Ms Saharsky: Well, the Ninth Circuit found that it wasn't clearly established law.

I understand that it's a fairly difficult Fourth Amendment question.

But as you say, it wasn't teed up in this case.

It wasn't -- there wasn't a petition on this question.

It wasn't raised in the brief in opposition.

You know, in light of the fact that the Ninth Circuit found it wasn't clearly established, it probably wouldn't make sense for the Court to address it.

One thing I might point out along those lines is that both the district court made a finding on page 49 of the joint appendix and then the court of appeals made a finding in it's opinion, and this was the reason that the court of appeals found it wasn't clearly established, was because there was no attendant threat in terms of employment consequences to Respondent in this case.

Justice Anthony Kennedy: Another question that is not teed up, but I guess I'm just curious to know about the history of the case.

Was it argued that there was no State action here?

And in your view, is that a very simple question to answer?

Ms Saharsky: In terms of the argument, Petitioner conceded throughout the litigation that he was a State actor.

In the complaint, Respondent actually suggested he was an employee of the city.

In terms of whether he was asserting the authority of State law, it does seem fairly clear that he was asserting the authority of State law here.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. McGill.

ORAL ARGUMENT OF MICHAEL A. MCGILL ON BEHALF OF THE RESPONDENT

Michael A Mcgill: Thank you, Mr. Chief Justice, and may it please the Court:

The Petitioner has not demonstrated a historical basis of immunity at common law for somebody in Mr. Filarsky's situation.

The Petitioner has also not shown that the immunity's purposes also serve Mr. Filarsky's situation here.

I want to put those two issues aside.

We will talk about that in a minute, but I want to address the issue that has been most -- discussed the most, which is the Petitioner's test.

The test that the Petitioner proposes that this Court adopt is one that is very difficult to use.

The test is simply whether the individual is temporarily retained in the functional equivalent of a government employee, considering three factors.

The three factors are: One, the nature of the role performed; the close supervision and/or coordination with a government official--

Justice Samuel Alito: Well, what about your test?

What is your test?

Michael A Mcgill: --Well, our test is Richardson.

I think Richardson is the correct analysis.

The court starts with looking at a historical basis of an immunity at common law and then from there works through the policy reasons.

Justice Samuel Alito: Well, suppose you have a lawyer who is a part-time employee.

Does that matter?

Michael A Mcgill: A part-time employee--

Justice Samuel Alito: A part-time employee of government unit.

Michael A Mcgill: --Well, he would be -- he would receive Harlow immunity.

Justice Samuel Alito: So the difference, your difference, is between an employee and an independent contractor?

Michael A Mcgill: Absolutely.

Justice Samuel Alito: Isn't that often a very difficult determination under the law?

Michael A Mcgill: No, I don't think so.

Any time -- like in Mr. Filarsky's situation, Mr. Filarsky is a for-profit law firm.

He sells himself as an experienced professional in the field providing legal services to the city of--

Justice Samuel Alito: There are a lot of -- there are a lot of -- I think -- well, there are a lot of law firms.

I think all law firms other than public interest firms are for-profit firms, and the attorneys are part-time employees of municipalities and other government units to perform various functions, part-time judges, part-time prosecutors.

Michael A Mcgill: --Well, the Court has made a distinction in its past decisions about functions that are integral to the judicial process.

So when you talk about a judge or a prosecutor, that's a special function.

That's sort of a different situation.

But never has there been an immunity for an attorney just because they happen to be an attorney.

There is no historical basis for that.

Neither the Petitioner nor the Respondent nor the seven amici have--

Justice Samuel Alito: Well, now you're talking about history.

But I want to know how -- how the courts are to determine and why it should matter how a municipality sets this up.

Suppose the town had hired Mr. Filarsky as a part-time town employee.

So he has the certain -- he has a one year contract or six month contract or something for a certain amount of money to perform services for a certain number of hours.

You would say that he would be entitled to qualified immunity then?

Michael A Mcgill: --No I would say that he would not be entitled to qualified immunity.

Justice Samuel Alito: Why?

Michael A Mcgill: Because he's a--

Justice Samuel Alito: He's an employee.

They passed a resolution saying he's an employee of the town.

Michael A Mcgill: --Well, they passed a resolution to hire him and his firm to provide those services on a temporary basis, or a basis of six months.

But he still is an outside attorney and he's probably got -- has other clients and has other interests involved.

And the situation is different -- it's an entirely different system when you have a private law firm operating for profit, contracts--

Justice Antonin Scalia: Year-long employment is not employment?

If I accepted a government job for only a year, I'm not a government employee?

I don't understand that.

Michael A Mcgill: --Well, as I understood the hypothetical, if -- if that individual is -- is working as an employee of the city--

Justice Antonin Scalia: He's working as an employee.

He's hired for one year.

It's a one-year contract.

Why does that make him not an employee?

Or is it the fact that he's a lawyer?

And all lawyers have a certain independent responsibility, they can't do some things that government superiors might tell them to do, right?

So are you going to say all lawyers are -- are -- cannot plead qualified immunity?

Michael A Mcgill: --Well, our position here in this case is that Mr. Filarsky was not necessarily acting in a role of an attorney, he was functioning as an internal affairs investigator.

It is doubtfully that he would have maintained an attorney-client relationship with the city given that he was hired for a chance to conduct a fact finding--

Justice Antonin Scalia: It makes it even easier then.

I thought the attorney thing would help you, but if he's not even functioning as an attorney, he's functioning as a government investigator.

Michael A Mcgill: --But he has other clients and he works for profit, then he operates in a different system.

Justice Antonin Scalia: Okay.

Michael A Mcgill: He is not subject to the same system--

Justice Antonin Scalia: But if they employed him for a year, exclusive employment, no other clients, you would say that is a different case?

Michael A Mcgill: --If they employed him for longer than a year?

Justice Antonin Scalia: No, I'm saying a year, in fact 364 days, okay?

And the deal was, you are going to work for us and nobody else.

You have no other clients.

Michael A Mcgill: Well, I think then that that's -- that's where you would have to look at the policy considerations.

Justice Antonin Scalia: I understand that.

But how do you look at them?

Does that case come out the same way or not?

Michael A Mcgill: No, I don't think it does.

If he's taking that position for that term, that one-year period to make money for profit, and the next year he's going to work for somebody else--

Justice Antonin Scalia: Everybody takes a position to make money for profit.

How many government employees work for free?

Michael A Mcgill: --But he may be in that instance trying to form a relationship with that municipality, and enter into a longer term contract.

Justice Antonin Scalia: He's -- he may be, I guess.

But assume he's not.

He's just a lawyer whose been hired for 364 days to work for nobody but the government.

And you still say that he has no immunity in what he does to investigate for the government?

Michael A Mcgill: Absolutely.

He gets no immunity in that situation.

Justice Antonin Scalia: Two years, though?

Three years?

I'm a lawyer who--

Michael A Mcgill: The longer you go.

Justice Antonin Scalia: --I'm a lawyer who enters a contract for life with this government to investigate, at that point does he get the immunity?

Michael A Mcgill: No, because there's--

Justice Antonin Scalia: Still not.

Michael A Mcgill: --There is no historical basis for immunity.

It just wasn't there.

For that function that Mr. Filarsky was providing, there is no historical basis for it.

And typically that would end the Court's question.

That would end the inquiry.

You only get to the policy consideration--

Justice Sonia Sotomayor: But don't we have--

Justice Samuel Alito: I thought there was a distinction between employees and independent contractors.

Is that the distinction you are drawing or not?

Michael A Mcgill: --Well, the distinction really is, if you are a private actor you are subject to a different set of rules.

You are subject to the market pressures and the competition that are going to correct your behavior and are going to satisfy the same purposes that immunity provides.

Justice Stephen G. Breyer: What would have happened if Abraham Lincoln today were there, and I gathered what happened is they thought the local prosecutor was good but Lincoln is better.

So we'll let Lincoln prosecute this case.

Now in your view Abraham Lincoln would not have had immunity, but the local prosecutor would have.

They did exactly the same thing, by the way, it was just that Lincoln had a better reputation.

Every word was the same.

Michael A Mcgill: As a historical basis, there does not appear to be immunity for private prosecutors.

However, this Court over the years has provided immunity for the judicial--

Justice Stephen G. Breyer: I'm asking you, in your opinion am I -- when I write this opinion I could say, not even Abraham Lincoln, when he acted as a public prosecutor, brought in for the occasion, in your opinion he should not have the immunity that Joe Jones, the local prosecutor would have?

I'm trying to get your opinion.

Michael A Mcgill: --I think that that's a much closer call.

Justice Antonin Scalia: If you should say that section 1983 didn't exist, that's your answer, right?

Michael A Mcgill: But I think it's a much closer call, because he was engaged in a prosecutorial function, which this Court over the years has.

Justice Stephen G. Breyer: But investigatory functions they don't get immunity, so if Lincoln had looked into it and said, you know, I've looked into this, I don't think we should prosecute.

And what they said was, use your judgment--

Michael A Mcgill: No.

Justice Stephen G. Breyer: --Okay.

So there are problems with both standards both ways.

This is one of the things that is bothering me.

Michael A Mcgill: Right.

Justice Stephen G. Breyer: Imagine in this case the lawyer sat down with the other firemen, the supervisor, and so forth, and they said not necessarily this event, they said we want to do X.

And the lawyer said, I have to tell you, it's unclear whether X is constitutional or not.

Now because it's unclear, I also have to tell you that if you do it, you will not be held personally liable.

Now, can a lawyer give that advice?

Yes.

When he does, of course, he is subjecting himself to personal liability.

Now it's that conflict that is worrying me, among other things.

So what do we do about that?

The lawyer is being asked to give advice to the client.

Under the canons of ethics he ought to have their interests at heart and in doing that he is subjecting himself to what could be hundreds of thousands or millions of dollars worth of damages or whatever in suits for malpractice.

Is there a way we side with you out of that dilemma?

Michael A Mcgill: I don't think that is necessarily an immunity question, it's more of a liability question.

Because it very well may be--

Justice Stephen G. Breyer: No, no, no.

What I'm assuming in the question is since it's a close question, he has to worry about a court saying, you were wrong in saying it was legal.

It was not legal.

The matter was unclear, but it was not legal.

At that point he becomes subject to much damages.

But of course, the others do not, and he had to tell them, go ahead with it.

You understand my point.

So what is the answer?

Michael A Mcgill: --But I think what it is, the difference there, there you have an attorney just providing advice which is different than what happened here, where you actually have an attorney engaged--

Justice Stephen G. Breyer: That may be.

But what I'm trying to work out is what is your set of rules.

If we don't say -- if we don't say you have immunity, and you agree that this is a bad dilemma, at least in my hypothetical case, I'm trying to work out what set of rules you advocate in order to either say, well, that's too bad, the dilemma is there, we can't get around it, or something else.

That's why I want your answer on.

Michael A Mcgill: --If the attorney under those circumstances could be held liable for a constitutional violation for simply giving advice and he happens to be a private attorney working for profit, then he wouldn't have immunity.

Justice Stephen G. Breyer: I change it slightly and he puts them up to it.

Michael A Mcgill: Well--

Justice Stephen G. Breyer: I don't know why he couldn't.

I mean, you know, he says "go do it".

In other words, my hypothetical -- okay, go ahead.

Michael A Mcgill: --I think the answer's the same.

If somehow under those circumstances the attorney could be held liable for giving that advice, and he's a private attorney, and he doesn't pass the Richardson test, then he would not be entitled to immunity.

Chief Justice John G. Roberts: Your case--

Michael A Mcgill: There is no -- I'm sorry.

Chief Justice John G. Roberts: --Finish your answer.

Michael A Mcgill: There is certainly no -- there is no historical basis of immunity just for giving legal advice.

The Petitioner hasn't pointed this Court to any firmly rooted tradition of an immunity.

Chief Justice John G. Roberts: Your case highlights, I think is a very good example of why the lawyer ought to have qualified immunity.

I mean this is a case where it looks like there's a lot of threatening and bullying going on.

I mean the lawyer says, you know, we are going to figure out a way to name you, Mr. Filarsky.

You're issuing an illegal order.

If you want to take that chance go right ahead.

You might want to take a minute to think about it.

I mean, it seems exactly the kind of situation for which qualified immunity was developed.

We want Filarsky to give what he -- do what he thinks is the right thing in this situation.

We don't want him to be worried about the fact that he might be sued.

And you have a lawyer here saying, well, if you do that I'm going to sue you.

So Filarsky naturally, or some lawyer in that situation is going to think, wow, do I really want to run that risk.

Isn't that exactly why we have qualified immunity?

Michael A Mcgill: No.

And the reason for that is because Mr. Filarsky is a private individual, he doesn't need qualified immunity.

You know, Richardson is decided in 1977 but in 2003 the Ninth Circuit issued its decision in Gonzales v. Spencer.

And in Gonzales v. Spencer the court held that private attorneys like Mr. Filarsky don't need immunity; they don't get immunity.

So the law in the land since 2003--

Chief Justice John G. Roberts: That's easy for a judge to say, because they are absolutely immune--

[Laughter]

--but for the lawyer who is sitting there and saying -- saying, I'm going to sue you, if you were -- well, you are a lawyer, and you are sitting in that situation, isn't that going to enter into your mind?

You say, well sue all you want; I don't care; this is the right answer?

Michael A Mcgill: --But for nearly a decade the law within the Ninth Circuit has been that private attorneys don't receive immunity.

Chief Justice John G. Roberts: Right.

Michael A Mcgill: And that -- the fact that is, is that Mr. Filarsky knew going into that -- that investigation that he wouldn't have immunity for anything he -- he did.

And it didn't deter him; it didn't make him--

Chief Justice John G. Roberts: Well, how do you know?

Michael A Mcgill: --Well, because he, in light of the threats that -- that he received, he still went forward with the -- what was deemed to be an unconstitutional search.

So the -- the policy purposes of, you know, wanting to prevent unwarranted timidity and deterring talented candidates from working with the government--

Chief Justice John G. Roberts: Well he had -- he had the chief issue the order, right?

Michael A Mcgill: --Well, the--

Chief Justice John G. Roberts: And then the chief later on says, well, he told me to issue the order.

I mean, I'm not quite sure that things went exactly as they would if you had qualified immunity.

Michael A Mcgill: --Well, Mr. Filarsky said, and this is what he said on the record; it's in the transcripts in the joint appendix, is that he is issuing the order on behalf of the department.

That's -- that's what he says.

And there was some -- some discussion back and forth between Mr. Delia's attorney and Mr. Filarsky, and that's what led to the formalization of -- of the order.

Justice Antonin Scalia: I understand that there's a lot of bad, cowardly legal advice being given in the Ninth Circuit.

I don't really know that, but you don't know the opposite, either, do you?

Michael A Mcgill: I don't.

Justice Ruth Bader Ginsburg: Why didn't you cross -- cross-appeal on the clearly established law?

Because then -- then you concede so, arguendo, he had qualified immunity, but the advice he gave was contrary to clearly established law.

Michael A Mcgill: So why did the Petitioner or Respondent not cross-appeal.

Justice Ruth Bader Ginsburg: Why didn't you bring up that -- that issue?

Michael A Mcgill: I think it was -- that's sort of the law of the case, is that the Ninth Circuit found that there was a constitutional violation.

So we -- we obviously didn't want to appeal that.

Justice Ruth Bader Ginsburg: But -- but whether it was clearly established?

In other words, what we had here was a recognition, we can't go into the house.

We can't go into a private house without a warrant.

So in fact Filarsky said something about, I know a way -- a way to get around that, we just tell them to bring out the items.

Michael A Mcgill: Right.

I -- I -- my personal opinion and our position has been is that it -- the law was clearly established on that.

Why the decision was made not to cross-appeal on that, I'm not -- I'm not sure.

But--

Justice Samuel Alito: You are saying it's clearly established that there isn't a difference between going in and looking for the insulation, et cetera, and telling him to bring it out.

Because they clearly established the -- that as a condition of employment in a situation like this, the employee cannot be required to submit to a search?

Michael A Mcgill: --I -- I think it's pretty well known that the house is--

Chief Justice John G. Roberts: Well, particularly -- well, even if -- the reason it's an issue is because he says, look, I have got this stuff at my house.

That's how his -- his defense is.

I haven't used it; I have got the insulation there.

So you think it's still clearly established that it violates the Fourth Amendment for the city to say, okay, well, show it to us if you want to use that as your defense?

Michael A Mcgill: --Yes, I do because it -- it -- certainly Mr. Filarsky didn't have any reasonable suspicion to believe that Mr. Delia was lying or was being dishonest.

He certainly didn't have probable cause.

He had a hunch.

And then, that's what said, I -- I -- he said it as -- at the -- during the interview that I -- I don't necessarily know that you are lying, I just -- I want to see if you are.

So, you know, the investigation turned from wanting to see whether Mr. Delia was off work on false pretenses into, well, I don't have anything there, so let me just see if he is lying, just for the sake of it.

And that's when they ended up issuing that order.

I think that would be a different situation if perhaps you could argue that they had a reasonable suspicion, or had some cause to search his house, but here they didn't.

So I think it is under those facts clearly established.

Justice Elena Kagan: Mr. McGill, back to immunity.

What -- one thing I don't understand about our law here.

You say there was no historic basis.

And I have to concede that that's right.

Seems to me that there's -- there was only a malice defense.

But isn't that always true when it comes to a -- a private person?

In other words, of course there is no historic basis for qualified immunity.

This kind of immunity was developed in 1970.

It's sort of by definition, there is no historic basis for this sort of immunity.

So to say that the historic basis matters is really to say that private people never get Harlow immunity.

Michael A Mcgill: Well, I -- I think that that's right.

There was not qualified immunity at common law, but there was absolute immunity.

And in -- in their -- I mean, I can't go back and think about all the different immunities that may or may not have existed, but I -- I do know the Petitioner has the burden to bring forth -- a firm -- tradition.

This Court has said over and over it's not going to create new immunities.

Justice Samuel Alito: But the Court's cases are a mix of history and -- and policy.

The Court has recognized both absolute immunity -- has recognized absolute immunity in instances where there wasn't absolute immunity at common law; isn't that true?

Michael A Mcgill: Right.

Justice Antonin Scalia: And -- and the rule about malice being -- being the criterion of liability, that applied not just to -- not just private lawyers but to government lawyers as well, didn't it?

Michael A Mcgill: It did.

That that -- that good faith defense applied.

Justice Antonin Scalia: So if we are going to be historically faithful, we should deny any qualified immunity to government lawyers, or expand the government immunity to -- for government lawyers, so they can do anything so long as it's not malicious?

Michael A Mcgill: Well, that -- that's what this Court would have to do.

Justice Antonin Scalia: Yeah, right.

Michael A Mcgill: It would have to basically expand what a common law defense.

Justice Antonin Scalia: Right.

So the -- history, right?

Michael A Mcgill: Well, it would result in this Court having to expand that immunity that it expanded in Harlow to private individuals.

And our position is that because a private individual, like Mr. Filarsky, as a market participant, the purposes of immunity aren't served.

They are just simply aren't not needed.

And I was mentioning earlier about--

Justice Ruth Bader Ginsburg: What about -- what about the argument that Filarsky makes, that if there were to be a proceeding against him, inevitably the witnesses would be the government employees?

There would be the battalion chief, the fire chief; so one of the reasons for the qualified immunity is you don't want to disturb a -- government employees in the routine performance of their work.

Certainly in this case there would be disruption, distraction of these government employees.

Michael A Mcgill: --Well, there probably would be some distraction.

That would be inevitable, but it would be no different than the distraction that the government would face when a private attorney is sued for any number of claims, malpractice or you know, some State law violation.

And to say that the distraction that the government is going to faced based on just what is probably a small sliver of the big pie, which is you know, 1983 litigation, is pretty speculative.

And of course, it doesn't answer the question that the -- the government employer itself can still be liable under Monell.

So even though the immunity may kick in and the individuals may get off, or may not have to stand suit, it -- there are still occasions when the government is still going to be there, so that distraction is still going to exist.

Chief Justice John G. Roberts: What if Filarsky was there, you know, hired to help the fire department with these -- and he did absolutely nothing?

He just sits there and watches.

The battalion chief says, I want to do this, I am going to go get the stuff; you bring it all out.

And he just -- he just sits there, doesn't see any reason to offer any legal advice or legal opinion.

Could you sue him under 1983?

Michael A Mcgill: Well, I don't think he would be liable.

I don't think under that situation he would have participated in the--

Chief Justice John G. Roberts: Really?

He has an obligation as a lawyer to speak up if he thinks something illegal is going on, that's his job, and he doesn't -- he just sits there quietly?

Michael A Mcgill: --No.

I don't know that -- that he would be liable under section 1983.

But if he were, and he were a private lawyer, he would not have qualified immunity.

He would still be under the same Richardson test where there is no historical basis for it, and because he's a private individual working under -- you know, working ing for profit and subject to market pressures, he wouldn't--

Chief Justice John G. Roberts: This for profits, I -- the significance of that eludes me.

Sometimes people act out of, you know, public purpose, and particularly in these sorts of situations the town needs a lawyer and he -- he's helping out.

What -- if he were purely a volunteer, it would be a different answer?

Michael A Mcgill: --If he were purely a volunteer it -- it very well might be a different answer, because some of those policy concerns that -- that Richardson talked about and discussed may not be present.

So you have to apply the test to the situation you have before you.

Chief Justice John G. Roberts: And, well -- and what if he gives the city a discount?

He is working for half -- half his fee, because it's the city.

He wants to help out, but he can't do it totally for free, so it's 50 percent his normal rate?

Michael A Mcgill: I don't know that 50 percent makes a difference.

And earlier, we were discussing about the 1 year or the 2 year and so forth, the length of the contract.

I don't think those things necessarily make a difference.

The point is whether Mr. Filarsky was undertaking that representation or that role in a manner that made him subject to other regular market pressures.

If he was performing a function and competing against other lawyers or other investigators performing that same function, then the point is there, you know, he isn't going to be as timid, because he's want -- going to want to do a good job.

And the same policy concerns that are present for a government lawyer aren't there for him as a private individual.

Justice Samuel Alito: Suppose a municipality were to -- or a State were to abolish all civil service rules and all the special rules and go back to employment at will for government employees, would that -- would that take with it the whole qualified immunity regime?

Michael A Mcgill: I don't think that it would.

In other words, is the question whether or not if we abolished the merit system or civil service system, would qualified immunity still be needed?

I think if that were the question, that -- well, that's a tough question to answer.

But it very well may not be, because part of the decision in Richardson here was -- it was -- they were operating within a different system.

Private versus public.

And if you start to make the public system look more like a private system, then it very well may be that immunity won't be needed at all.

Justice Samuel Alito: It seems strange, because the immunities -- at least some of the immunities -- long predate the establishment -- the institution of the civil service system.

Everybody is subject to market forces.

Every person who works is influenced by market forces to some degree, isn't that correct?

Michael A Mcgill: I think that that's correct, but when you have a civil service system, a merit system, it's not as easy to correct behavior as it would be for, say, a private person.

For, like Mr. Filarsky, if he was not performing at the level that the City of Rialto had hoped, he could be replaced, and quite easily.

For a government employee, though, there are obviously the civil service protections, and it's not so easy to do that.

Justice Sonia Sotomayor: --That's not true of most lawyers.

Michael A Mcgill: Pardon me?

Justice Sonia Sotomayor: Most lawyers are not part of the civil service -- internal lawyers are not part of the civil service system.

They're generally considered employees at will.

At least most of the circuit courts have so held.

Michael A Mcgill: I'm -- I'm not familiar with whether--

Justice Sonia Sotomayor: That they're policymakers, and as such, are not subject to civil service protections.

Michael A Mcgill: --Well, I -- I know that some subsections of lawyers within a government can be represented, so they -- they very well may have some protection.

But maybe it's not quite to the extent that more of the rank and file would have.

Justice Samuel Alito: Well, the political appointees within the United States Department of Justice are not protected by civil service, so should they lack immunity?

Michael A Mcgill: No, because they would -- they would get it under Harlow.

They would -- they would have immunity under Harlow.

Justice Samuel Alito: They are subject to market forces, aren't they?

Michael A Mcgill: They -- they very well may be.

And it may be for me to say that maybe they shouldn't have immunity; it's not needed.

But at this point, the law is in Harlow that they would receive it.

Justice Antonin Scalia: What if I told you that all the lawyers at the Department of Justice are regarded as being employed at will, and that all of them can be fired?

Do you think the rest of them don't -- don't have any protection?

Michael A Mcgill: I think that the answer would be the same; in that they very well may not need qualified immunity because those pressures and those concerns underlying immunity aren't there.

Justice Antonin Scalia: Wow.

That's going to be disappointing news for all those attorneys.

[Laughter]

Michael A Mcgill: I just want to go back and talk about the Petitioner's test a little bit, too, because the Court had some concerns about it and I share those same concerns.

And that's that the test requires a factual analysis.

You know, being temporarily retained in close coordination and supervision.

Those are highly factual questions that aren't going to bode well for early resolution of a case.

And a -- the lawyer is going to be able to plead around that test very easily and take the case into full-blown litigation and discovery and so forth.

So that -- that test is problematic.

In addition, as I understand it, the test is going to be extended well beyond attorneys.

The test results and anybody working for the government -- under, you know, close coordination or supervision, whatever that means, is going to get immunity.

So that is well beyond attorneys, to anybody.

Anybody who contracts with the government and meets that factual test is now going to have immunity.

And that's something -- that's a huge step that this Court, you know, should not take, especially when there is no historical basis for it and the policy concerns are not present.

But even if you apply that test to Mr. Filarsky, under these facts, Mr. Filarsky would not have immunity.

He wasn't temporarily retained.

He worked for the City of Rialto for 14 years as a business, for a profit.

He had many clients, and the City of Rialto was one of them.

It wasn't that he was temporarily retained.

So he doesn't even meet that element of the Petitioner's test.

Mr. Filarsky was not--

Chief Justice John G. Roberts: Are all of these -- are all of these objections applicable as well to the determination of whether there was State action from the attorneys' conduct?

Michael A Mcgill: --The -- the concerns about there being a factual inquiry?

Chief Justice John G. Roberts: Yes.

Michael A Mcgill: I don't think so.

As an attorney, I would have to certify in a pleading that the relationship between the person I'm suing and the government -- so I think there would have to be information put forth in the pleading that would establish that, and I don't know that one could simply make up State action for purposes of pursuing a 1983 action.

So it -- it may be that there is a factual inquiry, but I don't think it's as great or nearly as great as the temporarily retained or close coordination components to the -- to the Petitioner's test.

Mr. Filarsky was not performing a function that is uniquely governmental.

Investigating workplace misconduct is not a governmental function, or it's not a prototypical governmental function.

Chief Justice John G. Roberts: But your -- your objection is not that he was investigating workplace misconduct, your objection was that he was ordering people to tell your client to bring out stuff that was in his house.

Michael A Mcgill: Correct.

But it was under the auspices of a workplace investigation, if you will.

Chief Justice John G. Roberts: Yes, but telling people basically either execute a search or in effect executing a search, that is a uniquely governmental function.

Michael A Mcgill: Executing a -- a formal search by the government is something -- that's a role that the government performs, but I wouldn't say that -- I wouldn't equate, you know, executing a search with what occurred here.

Well, let me restate that, I guess.

What I mean to say is that--

Justice Antonin Scalia: You don't want to say that.

Michael A Mcgill: --Mr. Filarsky, the function, the role that he was performing was that of an internal affairs investigator.

Justice Antonin Scalia: Yes, but if -- if he did the same thing for a private company -- he could do the same thing for a private company.

Say, you know, you're going to get fired unless you substantiate your story by bringing the stuff out of your house.

That wouldn't be a search, an unlawful search; right?

It could have happened in the private company.

Michael A Mcgill: It could have.

Justice Antonin Scalia: Yes.

Michael A Mcgill: It very well could have.

And that's my point, is that what Mr. Filarsky did in his role was not uniquely governmental.

He wasn't performing a governmental function.

Justice Antonin Scalia: Well, there's very little that is uniquely governmental.

I mean, my goodness, if we denied immunity to all those acts that are not uniquely governmental, there would be very little immunity, I'm afraid.

Michael A Mcgill: Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Millett, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Ms Millett: Thank you.

Justice Breyer, your dilemma is -- is at the crux of why qualified immunity is appropriate here, because not only do you have the lawyer saying well, you'll be all okay but I'm going to be going down in this lawsuit.

You are going to have a duty to inform this client that in fact this will lead to litigation; you will be protected in your personal capacity, but guess what, litigation is going to ensue.

That can influence and -- and deter both lawyers' willingness to work for the government at these cut rates or pro bono rates -- subconsciously, the advice they give, and it can make the government not want to act on the advice, which is precisely what we want to protect.

Nothing like that was happening in Richardson.

The government was nowhere on the scene when the constitutional decisions being challenged -- they weren't even percipient witnesses in that situation.

The second -- second point I want to make is fiduciary duty doesn't change it other than it confirms that he's working in the interest of the government, but every agent has a fiduciary duty to their principal, and so you can't deny qualified immunity on that ground or you'll have a sweeping decision on your hands.

The market concerns, Justice Sotomayor, the test is not whether a warm body could be found to fulfill this operation if he won't do it.

This is a completely different market from Richardson, where there's only one client for prisons and that's the government.

Here, the government is competing for the services.

When it needs a skilled attorney, when it wants people of the caliber that the government service needs and deserves, it is competing.

And right now, as the Chief Justice recognized, a lot of times, including for Mr. Filarsky, that's done at discount rates.

These folks -- this is already a marginal decision.

If you want to talk about market decisions, then you're going to push that weight.

And if the answer is -- if you decide to take on this pro bono representation, or cut your rates out of public duty, and -- and the willingness to serve your government, guess what comes with it?

You alone will be holding the bag at the end of this for the governmental misconduct.

Section 1983 is supposed to deter governmental conduct.

It is not supposed to deter the reasonable advice given by lawyers to governmental clients.

If the Court has no further questions.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: I have the opinion of the Court this morning in case, 10-1018, Filarsky versus Delia.

Nicholas Delia, a firefighter employed by the City of Rialto, California, became ill while responding to a toxic spill.

When Delia missed three weeks of work, the City became suspicious of his absence, particularly after he was seen purchasing building supplies from a home improvement store.

Believing that Delia was missing work to do construction on his home rather than because of an illness, the City initiated a formal internal affairs investigation.

It hired Steve Filarsky, an experienced employment lawyer who had represented the City in several previous investigations to interview Delia.

During the interview, Delia acknowledged purchasing the building materials, but denied doing any work on his home.

Filarsky suggested that the investigation could be wrapped up if Delia could produce the unused materials.

He asked Delia to allow a fire department official to enter his home to view them.

When Delia refused, Filarsky instead ordered Delia to bring the materials out of his home to show them to the official.

Delia's lawyer, who was at the interview, objected that the order violated the Fourth Amendment and repeatedly threatened to bring a civil rights lawsuit against the City and Filarsky.

Nonetheless, after the interview was over, fire department officials went with Delia to his home where he produced the unused materials.

Delia then sued the City, its Fire Department, several fire department officials, and Filarsky, claiming that the order to produce the materials led to an unreasonal search in violation of the Fourth Amendment.

Delia sued under Section 1983 of Title 42 of the United States Code.

Section 1983 provides a cause of action against the state actors who violate an individual's rights under federal law.

Now, at common law, those who work on behalf of the Government were afforded certain protections from liability when doing so, so that they could serve the Government without undue fear of personal exposure.

Our decisions have accorded similar protection to state actors sued under 1983 in the form of qualified or absolute immunity from suit.

We've reasoned that Congress meant to incorporate these protections into Section 1983 when it enacted that law in 1871.

The Court of Appeals for the Ninth Circuit ruled that all the individuals who worked for the Fire Department could claim immunity from suit, but not Filarsky, because he was a private attorney and not a full-time Government employee.

We granted Filarsky's petition for certiorari.

Now, to determine whether the Court of Appeals was right to distinguish between City employees and Filarksy for purposes of immunity, we look to the protections that common law afforded to those exercising Government Power in 1871.

Understanding those protections requires an appreciation of the nature of Government at that time.

In the mid-19th Century, Government was smaller in both size and reach, 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 staff by professionals.

It was not unusual to see the owner of the local general store step behind a window in his shop to don his postman's hat nor would it be a surprise to find on a trip to the docks, the local ferryman collecting fees as public wharfmaster.

Even such a core government activity as criminal prosecution was often carried out by a mixture of public employees and private individuals temporarily serving the public.

At the time Section 1983 was enacted, private lawyers were regularly engaged to conduct criminal prosecutions on behalf of the State.

Abraham Lincoln himself accepted several such appointments.

Given this mixture of public responsibility and private pursuits, characteristic of much of Government work at that time, it is not surprising that protection form liability at common law did not vary, depending on whether the individual working for the Government did so as a permanent or full-time employee or on some other basis.

Now, nothing about the reasons we have given for recognizing immunity under Section 1983, counsels against carrying forward this common law rule.

The Government needs its workers to act with the decisiveness required for the common good regardless of the terms on which those workers are hired and because those who work for the Government on only in occasionally basis will be free to choose other work, work that will not expose them to Government liability, there's an increased risk that the best candidates will avoid Government engagements if they are not given the same protections afforded full-time government workers.

Finally, damages suits distract individuals temporarily engaged by the Government just as they do for those who work for the Government full-time and can easily embroil other Government employees in the ongoing litigation.

The City of New York has a full-time Department of Investigation, staffed by full-time employees to investigate City personnel and to have the resources to pay for it.

The City of Rialto has neither and so must rely on the occasional services of private individuals such as Mr. Filarsky.

There is no reason that Rialto's internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.

We hold that immunity from suit under Section 1983 for an individual retained by the Government to do its work does not turn on the nature of that engagement.

The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed.

Our decision is unanimous.

Justice Ginsburg and Justice Sotomayor have filed concurring opinions.