Sua Sponte: NSBA and others file amicus brief urging Supreme Court to uphold qualified immunity for private attorneys representing public entities
The Supreme Court has agreed to hear a case that asks this question: Is a lawyer retained to work with government employees in conducting an internal affairs investigation precluded from asserting qualified immunity simply because he is a “private” lawyer rather than an employee of the public entity? NSBA, joining forces with other national and international groups representing public entities including the National Association of Counties, the U.S. Conference of Mayors and the National Conference of State Legislatures, urges the Court to say no, and to allow private attorneys to assert immunity when they are sued for constitutional violations.
Steve Filarsky is an attorney in private practice who was hired by a fire department to conduct an internal investigation to determine if one of its employees, Nicholas Delia, was abusing his sick leave. During the course of the investigation, Filarsky and department officials directed Delia to produce building materials at his home in order to show that he had not been completing home remodeling during his sick leave. After the employee was cleared of any charges that he had abused his sick leave, he sued the city, the fire department, and numerous individuals including Filarsky, alleging violations of his Fourth Amendment rights against unreasonable search and seizure and other claims. The Ninth Circuit, on appeal, decided the Filarsky was not entitled to qualified immunity because he was not an employee of the city.
In the amicus brief, NSBA et al. explain to the Court, “nearly all local government entities depend on outside lawyers to handle specialized, sensitive, and complex legal problems—the very problems most likely to trigger the litigation that qualified immunity protects against.” If the Court decides to deny qualified immunity to those attorneys, they will be exposed to suit for their work on behalf of the public, and will be far less likely to take on public entity clients. Such a decision would likely restrict public entities’ access to high-quality legal representation. The brief urges the Court to follow its precedent holding that all persons, even those not directly employed by a public entity, have qualified immunity if they perform an “essential government function,” which means work that (a) is performed on behalf of the public good, and (b) requires the exercise of judgment and discretion. The work performed by outside attorneys for entities such as school districts, NSBA argues, clearly fits this definition.
The amicus brief, filed by NSBA and other groups representing public entities, was written by Geoffrey Eaton, Jacob Loshin, and John Stith of Winston & Strawn LLP.