Today, the U.S. Supreme Court issued a unanimous opinion (by Chief Justice Roberts) in Filarksy v. Delia, No. 10-1018, holding that a private lawyer who was retained by a local government is entitled to assert qualified immunity. Along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity.
The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but every land use and takings lawyer must know the contours of section 1983 law. The specific issue before the Court was whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, was entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions. The Ninth Circuit concluded he could not avail himself of that defense, merely because he was not a government “employee.” The Supreme Court unanimously reversed.
Here’s the summary of the Court’s rationale:
(a) In determining whether the Court of Appeals made a valid distinction between City employees and Filarsky for qualified immunity purposes, this Court looks to the general principles of tort immunities and defenses applicable at common law, and the reasons the Court has afforded protection from suit under §1983. See Imbler v. Pachtman, 424 U. S. 409, 418. The common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level. Government work was carried out to a significant extent by individuals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government’s work, the common law did not draw distinctions based on the nature of a worker’s engagement with the government. 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. Common law principles of immunity were incorporated into §1983 and should not be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis. Pp. 4–11.
(b) Nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule. First, the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business — which has been called “the most important special government immunity-producing concern,” Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual sued as a state actor works for the government full-time or on some other basis. Second, affording immunity to those acting on the government’s behalf serves to “‘‘ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.'” Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees. Finally, distinguishing among those who carry out the public’s business based on their particular relationship with the government creates significant line-drawing problems and can 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. Pp. 11−13.
(c) This conclusion is not contrary to Wyatt v. Cole, 504 U. S. 158, or Richardson v. McKnight, 521 U. S. 399. Wyatt did not implicate the reasons underlying recognition of qualified immunity because the defendant in that case had no connection to government and pursued purely private ends. Richardson involved the unusual circumstances of prison guards employed by a private company who worked in a privately run prison facility. 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. Pp. 13−15.
More, after a chance to digest the opinion.
Filarsky v. Delia, No. 10-1018 (Apr. 17, 2012)