The Scam of Immunity Grows

Private Lawyers Working for Government Get Immunity, Court Says
The National Law Journal by Tony Mauro  -  April 18, 2012

WASHINGTON, D.C - Private-practice lawyers and others engaged temporarily by government agencies are entitled to qualified immunity from being sued, the U.S. Supreme Court ruled unanimously on April 17.  The decision is a relief for lawyers, who feared being exposed to liability for constitutional violations in cases in which the government employees with whom they worked would be immune. The American Bar Association in a brief warned that private attorneys would be "substantially deterred" from taking on government work if immunity was denied for those retained by government.  The U.S. Court of Appeals for the Ninth Circuit had denied immunity to California lawyer Steve Filarsky, who was sued along with city employees in Rialto, Calif., by firefighter Nicholas Delia for their actions in an employment dispute.  Filarsky, a partner at Filarsky & Watt in Manhattan Beach, had been retained by Rialto to help investigate the dispute. The Ninth Circuit upheld immunity for the full-time employees, but not for Filarsky, because of his non-employee status.  Chief Justice John Roberts Jr. wrote the majority opinion in Filarksy v. Delia, 10-1018, asserting that immunity from civil rights suits under 42 U.S.C. 1983 "should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis."  Justice Roberts pointed to the history of civil service, especially in the mid-1800s. Private citizens often performed government functions, he said.  "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," he wrote.  This blurring of lines was also common for government legal functions, Justice Roberts wrote, noting that Abraham Lincoln took on several appointments as a prosecutor while in private practice. Until 1853, when the job became full-time, Justice Roberts said, the U.S. attorney general was expected to maintain a private practice.  This history is relevant, he said, to discern the state of the common law regarding immunity at the time of passage of the civil rights statute in 1871.  "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," Justice Roberts wrote.  The main reason for giving government employees immunity, namely avoiding "unwarranted timidity" in their actions, is also applicable to those retained temporarily, Justice Roberts wrote.  Lawyers for Delia had argued that competition among private lawyers would ensure that lawyers would still be willing to work for government agencies without immunity.  Justices Ruth Bader Ginsburg and Sonia Sotomayor wrote separate concurrences.  Justice Ginsburg stressed that qualified immunity can be overcome if the defendant "knew or should have known" that his conduct violated a clearly established constitutional right.  Justice Sotomayor cautioned against interpreting the decision broadly to cover all cases of private individuals doing government work.  Tony Mauro covers the U.S. Supreme Court for ALM, the Law Journal's parent. He can be contacted at tmauro@alm.com.