High Court Backs Immunity for Municipalities’ Outside Lawyers

By Mark Walsh — April 18, 2012 3 min read

In a case watched closely by school districts and other municipal governments, the U.S. Supreme Court on Monday held that individuals working temporarily for local governments, such as private lawyers conducting investigations, are entitled to seek the same immunity from lawsuits that government officers enjoy.

The court’s unanimous decision in Filarsky v. Delia (Case No. 10-1018) came in the area of law involving immunity from lawsuits brought government employees under a federal statute known as Section 1983. The doctrine is well-known to school administrators and teachers (as well as police officers and many other categories of government workers) because they may seek so-called qualified immunity from any personal liability in civil rights suits challenging their actions.

The question in Filarsky is whether whether a lawyer temporarily retained by a city government for an internal-affairs investigation could also assert such immunity (which is “qualified” because it is somewhat less protective than the “absolute” immunity enjoyed by judges and prosecutors). The justices said yes.

“Ensuring that those who serve the government do so with the decisiveness and the judgment required by the public good is of vital importance regardless whether the individual sued as a state actor works full-time or on some other basis,” Chief Justice John G. Roberts Jr. wrote for the court. “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.”

The case involved Steve A. Filarsky, an attorney hired by the city of Rialto, Calif., to conduct an internal-affairs investigation of a firefighter suspected of deceiving his employer about an extended medical leave. The firefighter sued city officials, as well as Filarsky, alleging that he was required to present proof related to his claims in violation of his Fourth Amendment right against unconstitutional searches.

Two lower courts granted qualified immunity to the city officials, but the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that Filarsky alone among the defendants was not entitled to seek qualified immunity because of his status as a private attorney.

While the modern conception of qualified immunity stems from Section 1983, a federal statute that grew out of the Civil Rights Act of 1871, Roberts noted in his opinion that immunity for government officials existed as a matter of common law before then.

“In the mid-19th century, government was smaller in both size and reach,” the chief justice said. “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.”

At the time Section 1983 was adopted, private lawyers were regularly hired to conduct criminal prosecutions for the states, Roberts said, and “Abraham Lincoln himself accepted several such appointments.”

Meanwhile, also around that time, courts backed immunity for various individuals serving the government on a temporary basis. Among the cases cited by the chief justice was an 1880 one from Illinois holding that school board members were not liable for suspending a student in good faith.

Roberts noted that today, New York City has a Department of Investigation staffed by full-time investigators, but a city the size of Rialto “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.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor each filed brief concurring opinions.

The National School Boards Association led the submission of a friend-of-the-court brief, also signed by city and county associations and other municipal groups, in support of Filarsky.

“For cities, counties, school districts, and other local government entities, the availability of qualified immunity for all of their lawyers is a matter of great importance,” the NSBA brief said. “Many of those entities rely exclusively on outside counsel who are not employees; in-house counsel is a luxury they cannot afford at all. And nearly all local government entities depend on outside lawyers to handle specialized, sensitive, and complex legal problems—the very problems most likely to trigger the litigation that qualified immunity protects against.”

A version of this news article first appeared in The School Law Blog.

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