Surprise, surprise. The Supreme Court has reversed the Ninth Circuit yet again. But don't go rolling your eyes just yet. The Court's ruling in Filarsky v. Delia is good for attorneys everywhere.
The Court has chosen to grant qualified immunity to private attorneys who are temporarily retained by the government. So long as the alleged civil rights violations occurred while the attorney was carrying out the government's work, he will be personally immune from all section 1983 suits.
The Ninth Circuit had declined to extend immunity to Filarsky because he was not a permanent employee of the City of Rialto, California. Plaintiff Delia had accused Filarsky of violating his 4th Amendment rights as he conducted an internal affairs investigation on the city’s behalf.
Writing for the majority, Chief Justice Roberts rejected the notion that immunity is dependent on whether an individual is a permanent or full-time employee of the government. At common law, immunity was given to all individuals doing the government’s work. This “ensure[d] that talented candidates [were] not deterred by the threat of damages suits from entering public service.”
The need for such assurances is particularly relevant when the government must look outside its ranks for specialized services, according to the Court.
At first glance, the Filarsky ruling appears to extend immunity to all temporary government employees — not just private attorneys. Though it certainly includes non-legal professionals, it may not be as broad as one thinks.
Justice Sotomayor, concurring, reminds readers that “individuals must satisfy [the Court’s] usual test for conferring immunity.” Immunity will only be granted when the circumstances fit the “general principles of tort immunities and defenses.”
In other words, after Filarsky, you can breathe more easily, but your clients may not be able to.