Two Post-Filarsky Private Individual Immunity Decisions in the Circuits
I blogged on May 9, 2012, about Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court‘s important private individual immunity decision which ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis.
Here are two post-Filarsky decisions from the Fourth and Sixth Circuits which, contrary to my suggestion in the earlier post that Richardson is now an “outlier,” ruled qualified immunity inapplicable.
I came across these cases in the course of preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West Group) (CIVLIBLIT on Westlaw).
The Fourth Circuit
In Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), the plaintiff sued a bail bondsman under § 1983 alleging various constitutional violations arising out of the defendant’s efforts to catch a fugitive in and around plaintiff’s home. A jury found for the plaintiff and awarded compensatory and punitive damages, but the defendant on appeal challenged the district court’s qualified immunity instruction to the jury on the ground that this issue was not for the jury. Affirming, the Fourth Circuit held that there was no error because the defendant, as a bail bondsman, was not entitled to qualified immunity.
The court expressly followed the Richardson approach in looking at the history and policy of qualified immunity and finding that neither supported qualified immunity for bail bondsmen. There was no historical evidence demonstrating that bail bondsmen were given immunity or that they were considered as arms of the court performing a public function. Moreover, they were motivated primarily by profit and thus, per Richardson, there was no need for qualified immunity to ensure an adequate number of bail bondsmen.
Finally, Filarsky did not change this result: the defendant here was not an arm of the court, he was not employed by the sheriff’s department, he did not report to law enforcement, he was not asked to assist in apprehending the fugitive and he was in charge of the search. Thus, Filarsky was inapposite.
The Sixth Circuit
McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), involved a § 1983 Eighth Amendment lawsuit brought by a deceased inmate’s mother against a psychiatrist employed by an independent non-profit organization who was working part-time as a prison psychiatrist at the time he was allegedly deliberately indifferent to the serious medical needs of the inmate.
Ruling that the defendant was not entitled to claim qualified immunity, the Sixth Circuit, looking to history and the common law, found that a private physician working for a public institution in 1871 would not have been immune from damages liability at common law. In addition, the policies underlying § 1983 immunity doctrine—promoting independent decision-making, encouraging persons to go into public service and guarding against distraction—indicated that qualified immunity would not be appropriate here. As was true in Richardson, market forces would accomplish these same goals.
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