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Supreme Court to Consider Qualified Immunity for Lawyers Tuesday

By Robyn Hagan Cain | Last updated on

On Tuesday, the Supreme Court will hear oral arguments in Filarsky v. Delia, a qualified immunity case challenging a Ninth Circuit Court of Appeals decision that government-employed lawyers are entitled to qualified immunity, but private lawyers working on a case-by-case basis for the government are not.

While this isn’t the type of case that would typically pique the public’s interest, the outcome could make private lawyers reconsider whether they want to take on government projects.

Nicholas Delia, a City of Rialto firefighter, brought a civil rights lawsuit against the city, the fire department, two fire chiefs, and Steve Filarsky, a private attorney. Delia alleged that the defendants violated his right against a warrantless, unreasonable search of his home in the course of an internal affairs investigation. The Ninth Circuit Court of Appeals agreed that the warrantless search violated Delia's Fourth Amendment rights, but found that the government entities and employees involved in the search were protected by qualified immunity.

Filarsky, however, was not a government employee. The Ninth Circuit said that Delia could proceed with claims against Filarsky.

One of the most interesting aspects of this case for us is the amici. The federal government, National School Boards Association, American Bar Association, Kansas, California Cities and Counties interest groups, and the DRI have filed briefs arguing that Filarsky should receive qualified immunity. The amici note that government entities contract with private attorneys as a cost-saving measure, so they have an interest in ensuring that those private attorneys can serve the public without fear of personal liability.

DRI, argues in its amicus brief, "Private attorneys frequently work with government agencies in the same capacity as do attorneys who are permanently employed by the government. The [Ninth Circuit's Filarsky decision], however, adopts an artificial line between the two types of lawyers ... Neither logic nor history calls for such an arbitrary distinction."

Will you continue to represent government entities if the Supreme Court affirms the Ninth Circuit Court of Appeals, and finds that private lawyers are not entitled to qualified immunity?

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