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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1018
_________________
Steve A. Filarsky, PETITIONER
v.
Nicholas B. Delia
on writ of certiorari to the united states
court of appeals for the ninth circuit
[April 17, 2012]
Chief Justice Roberts delivered the opinion of
the Court.
Section 1983 provides a cause of action against
state actors who violate an individual’s rights under federal
law. 42 U. S. C. §1983. At common law, those who
carried out the work of government enjoyed various protections from
liability when doing so, in order to allow them to serve the
government without undue fear of personal exposure. Our decisions
have looked to these common law protections in affording either
absolute or qualified immunity to 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 be- cause he works for the government on
something other than a permanent or full-time basis.
I
A
Nicholas Delia, a firefighter employed by the
City of Rialto, California, became ill while responding to a toxic
spill in August 2006. Under a doctor’s orders, Delia missed
three weeks of work. The City became suspicious of Delia’s
extended absence, and hired a private investi- gation firm to
conduct surveillance on him. The private investigators observed
Delia purchasing building supplies— including several rolls
of fiberglass insulation—from a home improvement store. The
City surmised that Delia was missing work to do construction on his
home rather than because of illness, and it initiated a formal
internal affairs investigation of him.
Delia was ordered to appear for an
administrative in- vestigation interview. The City hired Steve
Filarsky to conduct the interview. Filarsky was an experienced
employ- ment lawyer who had previously represented the City in
several investigations. Delia and his attorney attended the
interview, along with Filarsky and two fire department officials,
Mike Peel and Frank Bekker. During the interview, Filarsky
questioned Delia about the building sup- plies. Delia acknowledged
that he had purchased the supplies, but claimed that he had not yet
done the work on his home.
During a break, Filarsky met with Peel, Bekker,
and Fire Chief Stephen Wells. Filarsky proposed resolving the
investigation by verifying Delia’s claim that he had not done
any work on his home. To do so, Filarsky 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. Un- able to obtain
Delia’s cooperation, Filarsky ordered him to produce the
materials for inspection.
Delia’s counsel objected to the order,
asserting that it would violate the Fourth Amendment. When that
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 spell- ing is clear [in
the order] so we know who to sue.”
Id., at
134–136, 148–149. Despite these threats, Filarsky
prepared an order directing Delia to produce the 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 pro-
tected by qualified immunity. The court held that Delia had
“not demonstrated a violation of a clearly established
constitutional right,” because “Delia was not
threatened with insubordination or termination if he did not comply
with any order given and none of these defendants entered [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 his- tory and reason’ had not been abrogated
‘by covert inclusion in the general language’ of
§1983.”
Imbler v.
Pachtman,
424 U.S.
409, 418 (1976) (quoting
Tenney v.
Brandhove,
341 U.S.
367, 376 (1951)).
In this case, there is no dispute that qualified
immunity is available for the sort of investigative activities at
issue. See
Pearson v.
Callahan,
555 U.S.
223, 243–244 (2009). The Court of Appeals granted this
protection to Chief Wells, Peel, and Bekker, but denied it to
Filarsky, because he was not a public employee but was instead a
private individual “retained by the City to participate in
internal affairs investigations.” 621 F. 3d, at
1079–1080. In 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 em- ployed 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 re- moval of a vessel unless the order was
issued maliciously);
Henderson v.
Smith, 26
W. Va. 829, 836–838 (1885) (notaries public given
immunity for discretionary acts taken in good faith);
Chamberlain v.
Clayton, 56 Iowa 331, 9 N.W. 237
(1881) (trustees of a public institution for the disabled not
liable absent a showing of malice);
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, immu- nity under
§1983 should not vary depending on whether an individual
working for the government does so as a full-time employee, or on
some other basis.
B
Nothing about the reasons we have given for
recognizing immunity under §1983 counsels against carrying
forward the common law rule. As we have explained, such immu- nity
“protect[s] government’s ability to perform its
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, 409–411 (1997).
We have called the government interest in
avoiding “unwarranted timidity” on the part of those
engaged in the public’s business “the most important
special government immunity-producing concern.”
Id.,
at 409. Ensuring that those who serve the government do so
“with the 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 en- gagements 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 tes- tify, 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 Fil- arsky
would be categorized if he regularly spent half his time working
for the City, or worked exclusively on one City project for an
entire year. See Tr. of Oral Arg. 34–36. Such questions
deprive state actors of the ability to “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 sup- port its extension to
individuals who had no connection to government and pursued purely
private ends. Because such individuals “hold no office
requiring them to exercise discretion; nor are they principally
concerned with 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 us- ing the mechanisms of government to achieve their own
ends, individuals working for the government in pursuit of
government objectives are “principally concerned with en-
hancing the public good.”
Ibid. Whether such individ-
uals have assurance that they will be able to seek 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
em- ployee, 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.