A National Law Journal article this morning reported that 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 the city to help investigate the dispute. The Ninth Circuit upheld immunity for the full-time employees, but not for Filarsky, because of his nonemployee status.
"Chief Justice John Roberts Jr., writing the majority opinion, asserted 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,' pointing to the history of civil service, especially in the mid-1800s."
The Court, in its syllabus, noted "common law as it existed in 1871, when Congress enacted §1983, did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Government at that time was smaller in both size and reach, had fewer responsibilities, and operated primarily at the local level. Government work was carried out to a significant extent by individuals who did not devote all their time to public duties, but instead pursued private callings as well. In according protection from suit to individuals doing the government's work, the common law did not draw distinctions based on the nature of a worker's engagement with the government. Indeed, 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. Common law principles of immunity were incorporated into §1983 and should not be abrogated absent clear legislative intent. See Pulliam v. Allen, 466 U. S. 522, 529. Immunity under §1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis…"
Continuing, it held that "nothing about the reasons this Court has given for recognizing immunity under §1983 counsels against carrying forward the common law rule:
• First, the government interest in avoiding "unwarranted timidity" on the part of those engaged in the public's business— which has been called "the most important special government immunity-producing concern," Richardson v. McKnight, 521 U. S. 399, 409—is equally implicated regardless of whether the individual sued as a state actor works for the government full-time or on some other basis.• Second, affording immunity to those acting on the government's behalf serves to " 'ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.' " Id., at 408. The government, in need of specialized knowledge or expertise, may look outside its permanent workforce to secure the services of private individuals. But because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts.
• Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees, and finally
• Distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to " 'reasonably anticipate when their conduct may give rise to liability for damages,' " Anderson v. Creighton, 483 U. S. 635, 646