Immunity Extends to Nonpermanent Workers

(CN) - Immunity shields a lawyer contracted for a fire department investigation that took an unconstitutional turn, the Supreme Court ruled Tuesday.

Rialto, Calif., became suspicious when firefighter Nicholas Delia missed three weeks of work on doctor's orders in 2006. The private investigators followed Delia to a home improvement store where they saw him buy building supplies including several rolls of fiberglass insulation.

The city then launched a formal internal affairs investigation and scheduled an administrative investigation interview led by Steve Filarsky, an employment lawyer on whom the city relied in such matters.

Delia admitted at the meeting to buying the supplies, but he claimed that he had not yet done the work on his home. Filarsky attempted in various ways to have Delia voluntarily produce the materials, but Delia refused on advice of counsel.

Though Delia's lawyer threatened to sue everyone involved if such production was ordered, Filarsky nevertheless made the order.

Delia then drove home and brought the insulation out on his lawn for two fire department officials to see. He then held true to his promise and filed suit against every individual involved in the order, including Filarsky, as well as Rialto and its fire department.

Delia brought the suit under Section 1983, which provides a cause of action against state actors who violate an individual's rights under federal law. A federal judge granted summary judgment to all the individual defendants on the basis of qualified immunity.

Though the 9th Circuit found that the production order violated the Fourth Amendment, it agreed that Delia "ha[d] not demonstrated that a constitutional right was clearly established as of the date of Chief Wells's order, such that defendants would have known that their actions were unlawful."

Concluding that Filarsky was not entitled to seek the protection of qualified immunity as a private attorney, the 9th Circuit revived Delia's claims against him, This decision conflicted with a 6th Circuit finding, and the Supreme Court took up the case in September 2011.

The justices were unanimous in their reversal Tuesday.

"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," Chief Justice John Roberts wrote for the court.

Citing precedent, the justices said there is an "assumption that common-law principles of ... immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so."

"Under this assumption, 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," Roberts wrote.

If temporary government workers cannot have the same immunity as their full-time cohorts, they will be less likely to accept assignments, according to the court.

"Under such circumstances, any private individual with a choice might think twice before accept­ing a government assignment," Roberts wrote.

The decision notes that Rialto went to Filarsky because of his "29 years of specialized experience as an attorney in labor, employment, and personnel matters, with particular expertise in conducting internal affairs investigations."

"To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work - work that will not expose them to liability for government /actions," Roberts wrote. "This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity en­joyed by their public employee counterparts."

In a concurring opinion, Justice Ruth Bader Ginsburg noted that the 9th Circuit on remand could pursue an avenue by which Filarsky could lose qualified immunity. Filarsky could lose immunity if he "knew or should have known his con­duct violated a right 'clearly established' at the time of the episode in suit," Ginsburg wrote.

Justice Sonia Sotomayor also authored a concurring opinion, which says that the court's holding does not mean to suggest "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."

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