Qualified Immunity Not Strictly for Governmental Employees Anymore

Key Points:

  • United States Supreme Court extends protection of qualified immunity to privately employed individuals who perform work for government.
  • Extension of immunity enhances opportunities for governmental entities to seek part-time candidates during the challenges posed by today's economy

 

In a unanimous decision in Filarsky v. Delia, 132 S. Ct. 1657, ___ U.S. ___ (April 17, 2012), the United States Supreme Court confirmed the extension of the protection of qualified immunity to privately employed individuals who perform work for the government. The Court's decision insulates temporary government hires from liability for claims filed pursuant to 42 U.S.C. § 1983 unless, of course, the defendant knew or should have known that his conduct violated a "clearly established" right at the time of the violation.

The Court saw the facts surrounding the claims in Filarsky to be a fitting example to extend the shield of qualified immunity to temporary government employees. In Filarsky, Delia, a firefighter employed by the City of Rialto, was suspected of improperly utilizing sick time from work that he claimed was due to an illness resulting from his exposure to a toxic spill during the course and scope of his employment. The city retained a private investigation firm which observed Delia purchasing building supplies during the time frame in which he claimed to be ill. As a result, the city hired a private attorney, Filarsky, to initiate an internal affairs investigation. Filarsky, two fire department officials, Delia and his attorney attended a meeting during which Delia denied that he used the building supplies to perform any construction at his residence. Filarsky requested that he be permitted to enter Delia's residence to determine whether Delia's representation was credible. Delia denied the request for entry. As an alternative, Filarsky ordered that Delia bring the unused building materials out of his home so that he could confirm that Delia's statements were true. Following the interview, the officials followed Delia to his residence at which time he produced the materials.

Subsequently, Delia filed an action pursuant to Section 1983 alleging violations of his Fourth and Fourteenth Amendment rights against the city, the fire department, Filarsky, the fire department officials in attendance at the interview and ten unidentified individuals. The District Court dismissed all of the individual defendants with the exception of Filarsky, who appealed. The Court of Appeals for the Ninth Circuit affirmed the decision of the District Court. Filarsky filed a petition for certiorari, which was granted. The Supreme Court heard argument on the issue of whether an individual hired by the government to do its work is entitled to qualified immunity, even though he works for the government on something other than a permanent or full-time basis.

In its analysis providing a basis for extending qualified immunity, the Supreme Court examined the common law principals of torts and related defenses, as well as the manner in which governmental entities often functioned at the time that Section 1983 was enacted in 1871. The Court noted that at the time that the statute was enacted, private citizens were actively involved in government work on a regular basis due to the small size and reach of government. As classic examples, the Court referenced Abraham Lincoln's appointment to act as a prosecutor despite his own private practice, as well as the fact that the position of Attorney General of the United States was only part-time until 1853. The Court also referenced the various common law immunities for adjudicative and law enforcement positions. The Court reiterated that common law principals of immunity were incorporated into the judicial system and "should not be abrogated without clear legislative intent to do so." Therefore, the Court reasoned that no distinction between full-time governmental employees and those employed by the government in another capacity should exist.

Furthermore, the Court explained that the protection of immunity would also prevent timidity during the performance of an employee's duties for fear of suit and would encourage talented candidates to become involved in public service. The Court found the facts of this case particularly fitting in this regard. It compared New York City, which has its own Department of Investigation staffed by full-time employees who investigate city personnel, with the City of Rialto, which did not have the resources to pay for such a department. As a result of its limited resources, the city engaged Filarsky, an experienced employment attorney, to investigate Delia. The Court emphasized the inequity that would flow from excluding Filarsky from the protection of qualified immunity.

With the ever-present necessity of downsizing in today's economy, employers are frequently seeking temporary employees to perform certain tasks, rather than maintaining full-time employees who would be entitled to the accompanying benefits. The Supreme Court's timely holding places governmental entities on equal ground with private entities in their ability to draw qualified individuals on a temporary basis. While the facts of the case pertained to the actions of an attorney, the rationale provided by the Supreme Court foreshadows Filarsky's application in other governmental employment functions.

*Danielle is an associate in our Pittsburgh, Pennsylvania, office and can be reached at 412.803.1185 or dmvugrinovich@mdwcg.com.

Defense Digest, Vol. 18, No. 3, September 2012