Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It’s not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.
But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we’d post it, even though it involves an employment matter.
The issue in the case is 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, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.
In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court declined to extend qualified immunity to private prison guards, but expressly noted a historical basis of immunity for private lawyers working “at the behest of the sovereign.” Id. at 407. The Richardson majority also expressly did not preclude qualified immunity for private parties working as “adjunct[s] to government.” Id. at 413. Based on Richardson, the Sixth Circuit has accorded immunity to such “private” lawyers. Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997). Contravening Richardson and expressly disagreeing with Cullinan, the Ninth Circuit in Filarsky denied qualified immunity to Filarsky solely because of his “private” status, even though it accorded qualified immunity to all of the individual government actors involved, thereby completely exonerating them for the very same conduct, which did not violate any clearly established rights.
The Supreme Court granted cert to resolve the circuit split, and is considering this Question Presented:
Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee.
The petitioner filed his topside brief yesterday (also posted below).
The Court’s docket entry is here. Stay tuned for more developments in this case, coming soon.
Brief for the Petitioner, Filarsky v Delia, No 10-1018 (11-14-2011)