While I generally write only about Wisconsin Municipal Law topics, a recent U.S. Supreme Court case concerning a matter from California confirms what most of us working in this area had cautiously believed – that a private attorney who is contracted by a local government to serve as their attorney may claim the same level of immunity as an attorney who is an employee of the municipality.
In Filarsky v. Delia, the U.S. Supreme Court held that an attorney hired by a city on a temporary basis to carry out an employment investigation was entitled to the same immunities that would be afforded a city employee. This overturned a 9th Circuit decision which had granted qualified immunity to a group of city employees involved in the investigation, but not the attorney they had contracted to help in the investigation. There had been a circuit split on this question, as the 6th Circuit had allowed a private contractor immunity in Cullinan v. Abramson, 128 F. 3d 301, 310 (1997).
Justice Roberts, writing for a unanimous Court, said, “At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure.” And those common law principles and immunities are still valid and, as in this case, available to a person carrying out government work who is sued under § 1983. Citing numerous examples and historic principles, Justice Roberts said there was no reason to differentiate and leave a contracted person “holding the bag” to face liability when government employees would “enjoy immunity for the same activity.”
Writing concurring opinions, two Justices pointed out that while they agreed with the narrow holding that there is no reason to treat contractors differently them employees for the same acts, they wrote separately to note while qualified immunity may be claimed by a contractor under some circumstances, it should also only be granted when the individual satisfies “our usual test for conferring immunity.” (Sotomayor). This “usual test” is found in Harlow v. Fitzgerald, 457 U.S. 800, 818, where Justice Powell held “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”