The issue in in Filarksy v. Delia, No. 10-1018, yesterday’s opinion in which the unanimous Supreme Court held that a private lawyer who was retained by a local government is entitled to assert qualified immunity, was whether the lawyer was prohibited from asserting the defense merely because he was not formally employed by the city.
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 civil rights actions under 42 U.S.C. § 1983. The Ninth Circuit concluded he could not avail himself of that defense because he did not get a W-2 from Rialto. The Supreme Court unanimously reversed.
[Disclosure: 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.]
Here are some takeaway thoughts:
- In § 1983 immunities, it’s all about the common law. The second sentence in CJ Roberts’ opinion discusses the common law “protection from liability” when carrying out the work of government, and the opinion mentions the term no less than 17 times in its 16 pages. When asserting an extension of immunity, you gotta know your history.
- This is a classic Chief Justice Roberts’ opinion: a touch of nostalgia for a simpler time (“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.”); a little Abe Lincoln (see p. 7), a little historic trivia (did you know that U.S. Attorney General was a part-time position until 1853? Ah, if only that were true today, AG Holder could set up a nice little side practice.).
- One for the legal writing mavens: “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.” p. 12 (emphasis added).
- Appellate remedies matter. The unanimous opinion “reverses” the Ninth Circuit’s judgment which denied Filarksy’s assertion of qualified immunity. By reversing, the Supreme Court seems to be saying “game over,” since it did not say “reversed and remanded.” But we’re not to clear what, if anything, happens next, since Justice Ginsburg’s concurring opinion seems to account for further proceedings and what issues “may be pursued on remand.” Specifically, she suggested that there are questions about whether Filarksy’s conduct violated a “clearly established” right, which, if it did, would overcome his claim of qualified immunity. So is the case over, or is it going back to the Ninth Circuit for that determination?
- This opinion is not limited to attorneys retained by governments, but by others who might work with or for governments without formally being employees. So if the sheriff in your town rounds up a posse, you might be immune also.
Even if the issue of qualified immunity doesn’t float your boat, check out the short and interesting opinion.