Filarsky Update: Qualifed Immunity Protects Some Private Attorneys

Vol. 35 No. 4


Michael Kamprath is a Board Certified Florida construction attorney with the firm of Thresher & Thresher, P.A., in Tampa, Florida. He is the Section’s liaison to the ABA Young Lawyers Division and is also active with the ABA Forum on the Construction Industry.

[ Note: The author provided a summary of the applicable decision in the Spring 2012 edition of State & Local Law News .—Ed.]

The Supreme Court released its opinion in Filarsky v. Delia, 132 S. Ct. 1657 (2012), on Tuesday April 17, 2012, holding that private individuals temporarily retained by the government to carry out its work are entitled to seek qualified immunity.

The Supreme Court decided a broader question than was initially presented by Filarksy in his briefs. Filarsky presented the question narrowly: 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 Supreme Court rewrote the question presented: Whether an individual hired by the government to do its work is prohibited from seeking such immunity, solely because he works for the government on something other than a permanent or full-time basis.

Thus, this decision affects a much broader class of government actors than private attorneys.

The Supreme Court began its analysis by reviewing § 1983 and the doctrine of qualified immunity under § 1983. The Court noted that there was no question that qualified immunity is available for the types of investigative activities at issue. Id. at 1662. It used a two-part analysis that looked at the “general principals of tort immunities and defenses” applicable at the common law and the reasons for affording immunity from suit under § 1983. Id.

In reviewing general principals of tort immunity as applied in the common law, Chief Justice Roberts seemed to wax nostalgic for a bygone era of smaller government “in both size and reach.” Id. The Court provided numerous examples of private citizens involved in government work, whether as a part-time postmaster or wharfmaster, prosecutor, or even the Attorney General, and remarked that the “common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities.” Id. at 1663. The Court continued that the common law extended protection to those engaged in law enforcement, including private individuals aiding in a posse comitatus. Id. The Court concluded its historical analysis stating “immunity under § 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.” Id. at 1665.

Next, the Court examined qualified immunity’s purposes. The Court acknowledged that avoiding unwarranted timidity on behalf of those engaged in government business is the paramount purpose of qualified immunity and that immunity given to both public employees and private individuals hired by the government ensures that all individuals are not deterred by the threat of lawsuits from entering public service. Id. Lastly, the Court acknowledged that governments have an interest in ensuring that their employees are not distracted by ongoing litigation against nonpublic employees sued under § 1983.

The Court proceeded to matter-of-factly distinguish Wyatt and Richardson. Id. at 1666. At first blush, the refutation of these precedents appears incongruous. Wyatt can be distinguished on the facts. The Wyatt individuals pursued solely private ends by using state replevin law to compel a sheriff to seize property . Wyatt v. Cole, 504 U.S. 158, 168 (1992). The Court found Filarsky was acting for the public benefit.

Richardson is the closer case. Employees who were employed by a private prison company that contracted with the state were sued for § 1983 violations and asserted qualified immunity. Richardson v. McKnight, 521 U.S. 399 (1997). The Court found that “[h]istory does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards.” Id. at 404. The Court found no special reasons significantly favoring extension of qualified immunity to private prison guards. A key distinction between Richardson and Filarsky is that the Richardson guards were employees of a private contractor and not private individuals hired directly by the government. The second key distinction that can be drawn is in the historical analysis. The Court found significant historical, common-law precedent supporting immunity for individuals hired directly by the government. The same historical support was not present in Richardson.

Justice Ginsburg filed a concurrence agreeing with the majority but noting that on remand the Ninth Circuit should consider whether qualified immunity in this case could be overcome if Filarsky knew or should have known that his conduct violated a “clearly established” right . Filarsky, 132 S. Ct. at 1668. Justice Sotomayor also filed a concurrence and suggested that § 1983 qualified immunity cases should be decided on a case-by-case basis. Id. at 1670.

Did the Supreme Court have the last word? As was pointed out by Robert Thomas in his April 18, 2012, blog post (, in the majority opinion the judgment was reversed, and the majority did not indicate it was remanding the case for any further proceeding; however, Justice Ginsberg strongly suggested that the Ninth Circuit had additional work to do.

[ This decision was issued more than two months after the ABA House of Delegates adopted R. 302, stating:

RESOLVED, that the American Bar Association supports the principle that private lawyers representing governmental entities are entitled to claim the same qualified immunity provided government lawyers from 42 U.S.C. Section 1983 claims when they are acting “under color of state law.” —Ed.]

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