My new post is up on the Reason Foundation web site. It’s about the Supreme Court’s decision last term in Filarsky v. Delia (decided almost exactly a year ago), which discussed whether a private attorney doing an internal-affairs investigation for a municipality was entitled to qualified immunity in an employee’s § 1983 lawsuit. Here’s an excerpt:
In 1871, as part of Reconstruction, Congress enacted a statute subjecting people to monetary liability if they violated anyone’s constitutional rights under color of state law. This statute, now called 42 U.S.C. § 1983, is a centerpiece of federal civil rights legislation, frequently used (especially since the 1960s) to secure compensation for victims of unconstitutional police tactics, mistreatment by corrections officers, bullying by heavy-handed bureaucrats, and the like.
But, despite its apparently absolute language, § 1983 hasn’t been interpreted to always require compensation. Rather, courts have read the statute as implicitly incorporating various forms of official immunity. For example, judges and prosecutors are absolutely immune from suit for any alleged violations of constitutional rights they commit as part of their official duties. The most important immunity is the “qualified immunity” enjoyed by executive officials. Officials with qualified immunity are only subject to suit if they violate a “clearly established right.” This is especially important when courts invent (or discover) new rights—or in areas like police or prison guard work, where the relevant constitutional standards (under, say, the Fourth or Eighth Amendments) are intensely fact-based, so courts often find violations that a reasonable officer wouldn’t necessarily have known about at the time. (All this also applies to Bivens actions, the more recent, judge-made, federal counterpart to § 1983 actions.)
Qualified immunity is a well-established part of civil rights law, though it remains controversial among scholars. On the one hand, a general rule that holds officials liable would better compensate victims, and may also lead to greater accountability. On the other hand, the fear of liability might make officials overly timid and might make it hard to recruit competent people for government work; moreover, courts might shy away from recognizing constitutional violations if they were concerned that doing so would excessively burden government functions.
Qualified immunity is usually given to public employees. But § 1983 is broader than that: private parties, for instance corrections officers at private prisons, can also act under color of state law, and thus can also be liable. Are these private parties entitled to claim qualified immunity? Yes they can, in many cases, said the Supreme Court on April 17, 2012 in Filarsky v. Delia. But reconciling Filarsky with previous decisions isn’t necessarily easy, and the availability of qualified immunity in the privatization context will probably continue to be confusing.
. . .
The Court’s language that Richardson didn’t apply to “the typical case of an individual hired by the government to assist in carrying out its work” (emphasis added) suggests that qualified immunity should be the norm for private individuals working for government, at least when they’re not organized in a corporate form and competing in a market. On the other hand, the Court’s opinion, as well as Justice Sotomayor’s concurrence, suggests that Richardson is still good law as to private prisons. Perhaps so. But, as Justice Sotomayor says, strong generalizations are elusive. What if Filarsky’s law firm had been hired in a competitive bidding process—would the case be like Richardson? What if a small municipality hired a local independent security guard as a temporary guard for its jail—would that be like Filarsky, despite a Richardson-like subject matter?
The chief judge of the Ninth Circuit, Alex Kozinski, who was on the 2003 panel that decided the now-reversed Gonzalez v. Spencer, recently said at an Emory Law Journal symposium on privatization that Filarsky puts Richardson on shaky ground. Nonetheless, Justice Breyer, who wrote Richardson, and Justice Ginsburg, who joined his opinion, joined the unanimous Filarsky decision, so at least two Justices (the other three in the Richardson majority have retired) think there’s a sound, even if fuzzy, distinction between CCA prison guards and occasional private lawyers working for municipal law enforcement. What’s certain is that between Richardson and Filarsky lies a substantial gray area, which will probably be the subject of substantial uncertainty and litigation in the years to come.
I’ve posted on the Reason Foundation web site on some previous occasions. You may be interested in these two:
- What a Recent Labor-Relations Decision Teaches Us About the Meaning of “Public” and “Private” — about an NLRB decision on charter schools, and different “public/private”-like standards under the NLRB, ADA, RLUIPA, and state action
- Supreme Court Antitrust Ruling Supports Public-Private Neutrality, Reduces Barriers to Privatization — about the Supreme Court’s recent decision in FTC v. Phoebe Putney, the antitrust state-action doctrine case
Click here to read the whole Filarsky v. Delia post.