The Supreme Court recently ruled that a private attorney retained by a local government to conduct an employee investigation was entitled to the same immunity available to government employees. The decision ensures that private individuals retained by governmental units need not worry – in most cases – about being sued in their individual capacities.
Filarsky, a private attorney, was retained by the City of Rialto to investigate a city employee’s use of sick leave. The city suspected that the employee was doing work on his house while on leave. During the course of his investigation, Filarsky ordered the employee to produce for inspection home insulation the employee purchased while on sick leave. The employee and his lawyer claimed this request was a violation of the Fourth Amendment, however, the employee did produce the unused insulation for inspection.
The employee thereafter brought an action under 42 U.S.C. § 1983 against Filarsky and city officials. After the Ninth Circuit ruled that Filarsky was not entitled to qualified immunity due to his status as a private non-governmental actor, the Supreme Court reversed and held that although Filarsky was a private attorney, he was retained by the government to perform governmental actions. Thus, Filarsky was entitled to qualified immunity to the same extent as the full time government officials. Filarsky v. Delia, No. 10-1018 (decided April 17, 2012).