Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 
Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that 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 Supreme Court said “The City of Rialto [California] 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.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at: