Qualified Immunity for "private" § 1983 Defendants After Filarsky v Delia

• Publication year: 2014

Qualified Immunity For "Private" § 1983 Defendants After Filarsky V Delia

Andrew W. Weis
Georgia State University College of Law, andrew.weis@outlook.com

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QUALIFIED IMMUNITY FOR "PRIVATE" § 1983 DEFENDANTS AFTER FILARSKY V. DELIA

Andrew W. Weis^*

Table of Contents

Introduction.......................................................................1038

I. § 1983 Principles and Immunities.................................1042

A. 42 U.S.C. § 1983 and the Evolution of Qualified Immunity...................................................................1042

1. § 1983 Liability and "Private" § 1983 Defendants..........................................................1042
2. The Rise of Immunity Doctrines in § 1983 Litigation: Absolute Immunity............................1045
3. The Rise of Immunity Doctrines in § 1983 Litigation: Qualified Immunity...........................1047
4. Modern Qualified Immunity: Inquiring Into "Clearly Settled Law"........................................1048

B. Qualified Immunity for Private § 1983 Defendants Pre-Filarsky.....................................................................1050

1. Wyatt v. Cole......................................................1050
2. Richardson v. McKnight....................................1053
3. Division in Lower Courts Following Richardson..........................................................1055

II. The Changing Framework for Analyzing the Availability of Qualified Immunity.........................1057

A. Filarsky v. Delia.......................................................1057

1. Review in the Supreme Court.............................1057
2. The Importance of the Qualified Immunity Analysis..............................................................1059

B. Problems Raised by Filarsky: The Employment Analysis....................................................................1061

1. "Or Some Other Basis": What Employment Relationship is Required?..................................1062

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2. What is the Effect of an Employment Relationship?......................................................1064

C. Problems Unresolved by Filarsky: The Historical and Policy Inquiries........................................................1066

1. Relationship of the Historical and Policy Bases for Immunity: What is the Test?...............................1067
2. The Historical Basis Inquiry: Reconciling Wyatt and Richardson..........................................................1068
3. The Policy Inquiry and Richardson's "Market Pressure" Rationale...........................................1068

III. Filarsky Expands the Availability of Qualified Immunity by Emphasiztng Functional Principles...1069

A. Employment Relationship: Filarsky Applies Functional Principles and Expands the Availability of Qualified Immunity...................................................................1070

1. Filarsky Encompasses Indirect Government Employment........................................................1070
2. Employment Satisfies the Historical Inquiry......1071

B. The Policy Inquiry After Filarsky: Towards a Functional Approach................................................1072

1. The Substance of the Policy Inquiry Embodies a Functional Approach..........................................1072
2. Both History and Policy Must Support Immunity.............................................................1074

C. A Synthesized Framework for Determining Private Party Immunity.........................................................1074

Conclusion..........................................................................1075

Introduction

42 U.S.C. § 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights "under color" of state law.¹ Because courts interpret the statute "against the background

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of tort liability[,]"² immunity doctrines apply to § 1983.³ As under common law tort liability, certain categories of defendants are afforded absolute immunity from suit.⁴ In determining whether absolute immunity is available, courts apply a "functional approach"—looking to the nature of the challenged conduct, rather than the title or position of the defendant.⁵

Government officials and employees not entitled to absolute immunity can instead assert qualified immunity,⁶ which shields them from civil liability insofar as their conduct does not violate "clearly established" federally guaranteed rights of which a reasonable person would have known.⁷ Qualified immunity aims to avoid (or limit) three main social costs: (1) the distractions that even insubstantial claims

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can cause, (2) over-deterrence in the exercise of discretion, and (3) the deterrence of talented candidates from public service.⁸

Although § 1983 tends to target the abuse of state power,⁹ the statute does permit suits against private defendants.¹⁰ Courts have long struggled in applying the doctrine of qualified immunity to these private § 1983 defendants,¹¹ as the doctrine's rationales apply less forcefully in these cases.¹² The Supreme Court first addressed the availability of qualified immunity to private defendants in the 1992 case Wyatt v. Cole, where it found that immunity was unavailable because the defendants in that case were acting in furtherance of private, rather than governmental, interests.¹³ In the 1997 case Richardson v. McKnight, the Court went further and found that even though the defendants in that case—employees of a private prison operated by a government contractor—were performing a public function, immunity was nevertheless unavailable because privatization and competitive pressures adequately mitigated the concerns that

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immunity would address.¹⁴ In these cases, rather than a functional approach to the immunity question, the Court adopted a two-part test that weighs both the historical and policy bases for immunity.¹⁵

In 2012, the Supreme Court returned to the question of private party qualified immunity in Filarsky v. Delia.¹⁶ There, the Court found that both the historical and policy bases for immunity under § 1983 supported extending qualified immunity to outside counsel retained by a municipality.¹⁷ The Court noted that full-time government employees can always seek qualified immunity, so not extending it to individuals employed on some other basis would create "significant line-drawing problems . . . [which could] deprive state actors of the ability to 'reasonably anticipate when their conduct may give rise to liability . . . .'"¹⁸

This Comment synthesizes the post-Filarsky framework for determining the availability of qualified immunity for private individuals. Part I reviews the text and background of § 1983, surveys the evolution of § 1983 immunities, and explores the historical and legal underpinnings of private party immunity.¹⁹ Part II addresses the issues raised or left unanswered by Filarsky, and what questions lower courts are facing in Filarsky's wake.²⁰ Part III resolves these questions by showing that Filarsky converts the historical and policy inquiries into a functional test that focuses on the nature of the challenged activity and asks whether the defendant's actions furthered government ends.²¹ Part III, in other words, shows that while Filarsky preserved the form of the two-part test for immunity first articulated in Wyatt and clarified in Richardson, Filarsky adjusted these inquiries such that in substance they embody the functional approach advocated by the dissent in Richardson.

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I. § 1983 Principles and Immunities

A. 42 U.S.C. § 1983 and the Evolution of Qualified Immunity

1. § 1983 Liability and "Private" § 1983 Defendants

42 U.S.C. § 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights "under color" of state law.²² The purpose of the statute "is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."²³ Congress enacted § 1983 in the aftermath of the Civil War, and the statute, along with the Fourteenth Amendment, can be understood as shifting the role of protecting individual rights from states to the federal government.²⁴ By providing a cause of action for money damages to victims of constitutional deprivations, the statute serves a special function in reordering the relationship between not only the federal and state governments, but also between citizens and their local government.²⁵

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Perhaps the most basic question in interpreting § 1983 is what conduct occurs "under color" of state law. Prior to 1961, courts interpreted this "under color" language as requiring a state statute or custom to cause the constitutional deprivation.²⁶ In Monroe v. Pape, however, the Court announced a broader standard, holding that "'[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.'"²⁷

Although Monroe answered the question of what action is taken under color of state law, the question remained of who acts or can act under color of state law; indeed, this point of interpretation plays a central function in defining the scope of § 1983 liability. Government employees and officials generally act under color of law so long as there is some nexus between their government position and the

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constitutional deprivation.²⁸ Nominally "private" actors can also act under color of law in certain circumstances.²⁹

In Lugar v. Edmonson Oil Co., for example, the Court found that a private defendant using state prejudgment attachment procedures acted under color of state law because (1) the constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, and (2) the defendant could be...