On November 21, 2011, on behalf of the American Bar Association, we filed this amicus brief in Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011).
The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It's not a land use case, our usual focus, but since every land use and takings lawyer must know the contours of section 1983 law, we thought we'd follow along. Of course, the issue is also of great interest to the ABA's State & Local Government Law Section (I chair the Section's Condemnation Law Practice Area, and run the CLE programs for the Section), so when ABA asked if we and our SLG colleagues would do a brief, we naturally agreed.
The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city's internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions. The Ninth Circuit concluded he could not avail himself of that defense, merely because he was not a government "employee."
Our brief argues that he should be entitled to claim the same immunity since he was acting in the same capacity as a government-employed lawyer. The brief also points out that a contrary rule will severely impact the willingness of private lawyers to provide legal services to state and local governments.
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