Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010

In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.

Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.

The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*

The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.

In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.

Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”

In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.

In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”

Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.

The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.

In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”

The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”

Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”

* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.

** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/09-55514.pdf
.

Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

As the Appellate noted in Brady v New York County Dist. Attorney's Off., 2018 NY Slip Op 00895, Appellate Division, First Department, a public officer may be entitled to claim absolute immunity as a defendant in a lawsuit under certain circumstances. This posting considers some common types of immunities available to officers, employees and others that may be claims in the course of litigation or administrative actions.

In an action brought pursuant to 42 USC §1983 and state law, Brady contended that Defendants had refused to investigate his allegations of judicial corruption. The failure, he argued, constituted gross negligence, willful misconduct, prima facie tort, negligent infliction of emotional distress, and a violation of the equal protection clause.  that under 42 USC § 1983 and state law.

The Court of Claims granted Defendants' motion to dismiss Claim No. 126268 as against the State and the Attorney General's Office, and Claim No. 126067 as against the State and the Attorney General's Office. The Appellate Division unanimously affirmed the Court of Claim's ruling.

The Appellate Division explained that "To the extent any of [those] defendants can be sued at all, they are protected by absolute prosecutorial immunity, which applies to the decision whether or not to initiate a prosecution as well to the investigative and administrative acts that are intertwined with [those decisions], such as the decision not to investigate a complaint.

Depending on the circumstances, public officers and employees may enjoy other forms of immunity including sovereign immunity qualified immunity, transaction or use immunity,

In Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159, the court addressed the doctrine of sovereign immunity, explaining that sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

However, a governmental entity operating in a public capacity may loose its right to claim sovereign immunity in litigation if it is found that the underlying cause of action involved its acting in a proprietary capacity as the Court of Appeals indicated in Connolly v Long Is. Power Auth., Court of Appeals, 2018 NY Slip Op 01148. 

The issue before the Court of Appeals in Connolly was whether the defendants, the  Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO), and National Grid Electric Services, LLC (National Grid) were, collectively entitled to dismissal of plaintiffs' amended complaints on the rationale that the actions challenged were governmental and discretionary as a matter of law. 

The court rejected the defendants argument that assuming their actions were not discretionary, "plaintiffs' failure to allege a special duty is a fatal defect." Rather, the Court of Appeals ruled that because defendants had not met their threshold burden of demonstrating that the action was governmental in the context of its "pre-answer, pre-discovery CPLR §3211(a)(7) motions," it could not be concluded that plaintiffs' complaints fail to state causes of action as a matter of law.

The Court of Appeals also took note of the fact that LIPA was a public authority that was created by the legislature as a "corporate municipal instrumentality of the state . . . which shall be a body corporate and politic and a political subdivision of the state, exercising essential governmental and public powers," and authorized it to operate in LILCO's service area (Public Authorities Law §1020-c [1], [2]).

It then explained that it is "well settled that, "[d]espite the sovereign's own statutory surrender of common-law tort immunity for the misfeasance of its employees, governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts" (Haddock v City of New York, 75 NY2d 478, 484 [1990]). 

The doctrine of governmental function immunity "reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts," citing Valdez v City of New York, 18 NY3d 69. Additionally, said the Court of Appeals, "this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury."

Because the issue in this CPLR §3211(a)(7) motion is whether plaintiffs' complaints have stated a viable claim, the first issue that to be considered "is whether the . . . entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. This is because if the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action.

As the court explained in (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, "[w]hen the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability."

Assuming the government entity was acting in a governmental capacity, the court observed that a plaintiff may nevertheless state a viable claim by alleging the existence of a special duty to the plaintiff, citing Turturro, 28 NY3d at 478. 

In Turturro v City of New York, 28 NY3d 469, the court explained that a government entity performing a purely proprietary, non-governmental role when its activities essentially substitute for or supplement traditionally private enterprises. In contrast, a government entity will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers.

If the plaintiff establishes the elements of the cause of action, including special duty, the government entity can avoid liability under the governmental function immunity defense by proving the challenged actions were discretionary in nature and that discretion was, in fact, exercised. However, because the governmental immunity defense protects government entities from liability only for discretionary actions taken during the performance of governmental functions, "[t]he . . . defense has no applicability where the [entity] has acted in a proprietary capacity, even if the acts of the [entity] may be characterized as discretionary."

Viewing plaintiffs' allegations in the light most favorable to plaintiffs, "as [the Court of Appeals] must given the procedural posture" of this action, plaintiffs' allegations concern the providing of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York., nor does LIPA dispute that the provision of electricity traditionally has been a private enterprise which, in the normal course of operations, would be a proprietary function.

Accordingly, the Connolly court concluded that it could not, as "a matter of law based only on the allegations in the amended complaints, as amplified," conclude that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs' injuries.

The Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

However, in some situations such immunity dissolve in the face of  procedural omissions. For example, sovereign immunity may be waived as proved in Court of Claims Act Section 8. However, the State retains its immunity as to these claims in the event  claimants fail to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver is conditioned. In other words, the State's waiver of sovereign immunity pursuant to the Court of Claims Act is not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

In contrast to the Doctrine of Absolute Immunity, is the Doctrine of Qualified Immunity. In Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.”

In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges. After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130]. The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

Compelling an employee to answer work-related questions may result in another form of immunity, typically referred to transactional or use immunity.

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action. Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. In Corrigan the Court of Appeals explained that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

The high court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

However, an employee otherwise entitled to such immunity flowing from admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, in Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115 the courts indicated that such immunity would dissolve. In other words, transactional or use immunity does not permit the individual to lie.

Indeed, the U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees.

Further, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

There are a number of exceptions to an employee claiming transaction or use immunity. For example, in Greco v Board of Nursing Home Examiners, 91 AD2d 1108, the Appellate Division has held that an administrative disciplinary action may proceed notwithstanding the claimed immunity. A Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license.

The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

In addition, in Dacey v County of Dutchess, 121 AD2d 536 the Appellate Division ruled that statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing. In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

Other immunity-related issued may involve witnesses who may have participated in wrongdoing. Such witnesses are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure.

Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

The Eleventh Amendment of the United States Constitution provides another barrier to suing a State in federal court in that it provides that the judicial power of the United States "shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State." This means that the Eleventh Amendment generally bars federal courts from taking jurisdiction over lawsuits against state officials acting in their official capacities when the state is the real party at interest unless [1] the State has properly waived it right of immunity to being sued in federal court; [2] Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of its legislative power; or [3] where the plaintiff is seeking  prospective equitable relief for ongoing violations of federal law.

In a nutshell, Alden v Maine, US Supreme Court, 527 U.S. 706, explains that “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.

However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.

As noted in Mueller v Thompson, 858 F.Supp. 885, should a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].

In contrast, as the Second Circuit held in Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv, although a State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity, such removal may not affect its general claim to sovereign immunity.

Further, political subdivisions of a State are not "states" within the meaning of the 11th Amendment as the Second Circuit Court of Appeals held in Carrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cv.

The Second Circuit, noted that in earlier cases it had held that neither local school boards [Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232] nor local school districts in New York State were arms of the state [Fay v. S. Colonie Cent. School Dist., 802 F.2d 21] and thus not within the ambit of Eleventh Amendment immunity available to states explained that “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity [and] Eleventh Amendment immunity extends to “state agents and state instrumentalities that are, effectively, arms of a state.” In contrast, said the court, such immunity does not extend to suits against municipal corporations or other governmental entities that are not an arm of the state.

The court cited six factors determine whether an entity is an arm of the state:

(1) how the entity is referred to in its documents of origin;

(2) how the governing members of the entity are appointed;

(3) how the entity is funded;

(4) whether the entity’s function is traditionally one of local or state government;

(5) whether the state has a veto power over the entity’s actions; and

(6) whether the entity’s financial obligations are binding upon the state.”

Finding that Sullivan County BOCES is a locally run entity affiliated with local school districts, the Circuit Court concluded that its liability would not reflect adversely on New York State and thus did not satisfy at least one of these six criteria. The court rejected BOCES argument that it should enjoy immunity because the legislature has promulgated specific laws governing BOCES and because New York State treats BOCES differently than school districts. The Circuit Court opined that “This argument does not discharge [BOCES’] burden of showing that it is entitled to Eleventh Amendment immunity and thus the District Court was correct in denying its motion for summary judgment on the ground of Eleventh Amendment immunity."

Significantly, individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency. In Filarsky v. Delia, USSC, No. 10–1018, the petitioner appealed a decision by the 9th Circuit Court of appeals holding that an individual hired by a government agency to do its work is ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis. Here the court decided that a “private attorney,” was not a City employ­ee and thus was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.'"

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s rationale: Although not a public em­ployee, the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Further, citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

Selected "immunity" decisions

A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights.Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92

A two prong test is applied in determining if a public official is entitled to "qualified immunity" when he or she is sued. Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

Availability of absolute or qualified privilege in judicial and quasi-judicial actions. Rosenberg v Metlife, Inc, 8 NY3d 359

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the alleged violation. Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law. Mueller v Thompson, CA7, 133 F.3d 1063

Employee must answer questions concerning work if granted “use immunity.” Tanico v. McGuire, 80 AD2d 297

Family Medical Leave Act and the Doctrine of Eleventh Amendment

Immunity.Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Grand jury witness may claim absolute immunity regarding his or her perjurious testimony with respect to any §1983 claim based on such perjurious testimony

Idrissa Adamou v Detective Edward J. Doyle [in his individual capacity], USCA 2nd Circuit, No. 17‐255 [Summary Order]

In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion. Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach. Valdez v City of New York, 18 NY3d 69.

Lewiston Golf lacks sovereign immunity because the Seneca Nation does not have legal title or ownership of the golf course being developed by Lewiston Golf. The issue is whether the property used by Lewiston Golf is owned by the tribe, and the record leaves no room for doubt that the owner of the golf course is Lewiston Golf, not the Seneca Nation. Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp.

Police chief held to have qualified immunity with respect to First Amendment violation allegations. Gubitosi v. Kapica, CA2, 154 F.3d 30

Refusal to answer questions during an administrative disciplinary investigation. Matter of Eck v County of Delaware, 36 AD3d 1180 

States do not have immunity from suit in the courts of other states. Nevada v Hall, 440 US 410.

Strong public policy against liability based on testimony in judicial proceedings holds that a witness should not subjected to potential liability for testimony uttered at solely at a judicial hearing. In contrast, where a plaintiff relies on evidence independent of the testimony at a judicial proceeding or hearing, the public officer or a public employee may not invoke the doctrine of absolute immunity. De Lourdes Torres v Jones, 26 NY3d 742.

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability. Taylor v Brentwood UFSD, CA2, 143 F.3d 679

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award. In Re: The Arbitration Between Hawai'i State Teachers Association and the State of Hawai'i, Department of Education, Hawai'i Supreme Court, SCWC-11-0000065

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states' legislatures in 1950. The New York version of the legislation is found in §§7101 through 7112 of the Unconsolidated Laws; Unconsolidated Laws § 7101 says that consent to suit against the Port Authority is given by New York "[u]pon the concurrence of the state of New Jersey." §§7106 and 7107 state conditions to the consent. In the Matter of New York City Asbestos Litigation, 24 NY3d 275.

The U.S. Second Circuit Court's tests for sovereign immunity. Leitner v Westchester Community College, USCA, 2^nd Circuit, 14-1042-cv

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim. Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Where there is a rational process by which the jury could have concluded that the City's negligence was a proximate cause of the accident the doctrine of qualified immunity did not apply. Turturro v City of New York, 28 NY3d 469.

With respect to recoveries against "the state" as well as "any civil division thereof," to the extent that a statute allows recovery against the State, the statute waives the State's sovereign immunity. Such waivers are to be strictly construed and "waiver of immunity by inference being disfavored. Sharapata v Town of Islip, 56 NY2d 332.

State employees sued in a civil action for deprivation of rights brought pursuant to 42 U.S.C. §1983 assert a qualified immunity defense

The Second Circuit United States Circuit Court of Appeals' decision summarizes the events giving rise to this litigation as follows:

1. In 2008 an educator [Plaintiff] was investigated by the New York State Education Department [Department] and charged committing acts of sexual misconduct  in 1989 and 1992 with former students, resulting in a one-year suspension of his state licenses;

2. In 2011 Plaintiff obtained employment as a substitute teacher with another School District [District] in New York State;

3. In 2012 the Department informed the Districtʹs superintendent that it "had opened an ethics investigation" into Plaintiff's conduct;

4. Plaintiff was terminated from his substitute teaching position with the District;

5. Employees of the Department [Defendants] ultimately concluded that there were no grounds for an investigation.

Plaintiff brought suit in federal district court pursuant to 42 U.S.C. §1983 with respect to the termination of his employment by the District against the Defendants, whereupon the Defendants asserted a qualified immunity defense.*  

The district court denied the Defendantsʹ motion for summary judgment without addressing the Defendants' claimed qualified immunity defense.  In response to Defendants' motion for reconsideration, the district court, addressing that issue for the first time,  concluded that the Defendants were not entitled to qualified immunity because Plaintiff had demonstrated that Defendants "had violated clearly established law."

Defendants appealed, arguing that the district court erred in denying their motion for summary judgment based on the claim of having qualified immunity.  The United States Court of Appeals, Second Circuit, sustained Defendants' appeal, explaining that:

[a] Plaintiffʹs due process claim failed because he did not show a clearly established right to the meaningful opportunity to utilize his teaching license;  and

[b] Plaintiff also failed to demonstrate that the Defendantsʹ conduct was sufficiently stigmatizing under clearly established law so as to give rise to his  ʺstigma-plusʺ claim.  

Accordingly, the Circuit Court ruled that the Defendants were entitled to qualified immunity and that the district court erred in denying their motion for summary judgment.

As the coda to the decision, the Circuit Court opined that "We are not unsympathetic to [Plaintiff], who may have been unfairly treated by the [Defendants] with unfortunate results.  But for the reasons set forth [in its opinion, Defendant's] behavior did not give rise to a cause of action under section 1983 that could survive the [Defendantsʹ] qualified immunity defense." **

* In Doninger v. Niehoff, USCA, Second Circuit, 642 F.3d 334, writ of certiorari denied, 132 S.Ct. 499, the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee. The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.” If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity. 

** See https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

The decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/doc/18-1298_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/hilite/

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it, the Supreme Court said “The City of Rialto [California] has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9^th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

Qualified immunity from civil lawsuits

Qualified immunity from civil lawsuits 

Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) 

Avery Doninger, a high school student, claimed that school administrators violated her First Amendment rights to free speech by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

The United States Court of Appeal, Second Circuit, said that in adjudicating Doninger’s claims it had to determine if the school administrators involved were entitled to qualified immunity.* 

Concluding that the First Amendment claimed by Doninger was not clearly established, the Second Circuit affirmed Federal District court's decision that administrators were entitled to qualified immunity.

Addressing Doninger’s First Amendment claims at issue with respect to the defense based on the “doctrine of qualified immunity” advanced by the school administrators, the court said the in deciding whether to grant a government official's motion for summary judgment on qualified immunity grounds, a court conducts a two-part inquiry.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [official's] conduct violated a constitutional right.”

If the plaintiff’s cause survives that test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Further, said the court, “when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim. That is, a determination of whether the right at issue was ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.” In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

Summarized below are the views of the Appellate Division, First Department, concerning an administrators' or an employees' claim that their statements are privileged or that they are protected by some form of immunity in making such statements.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges.

After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

1. State and federal human rights laws gave them absolute immunity from retaliation for filing complaints alleging unlawful discrimination.

2. A "common-law privilege absolutely protected them from defamation suits" based on their communicating these allegations to Museum officials.

3. The statements that made concerning Herlihy were protected by a qualified privilege.

A state Supreme Court justice dismissed the action filed by Herlihy against the Museum but denied the volunteers' motion to dismiss Herlihy's action against them in its entirety. The volunteers appealed the Supreme Court's decision. The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130].

The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

* In contrast to the Doctrine of Qualified Immunity,” the Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doninger decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/doc/09-1452_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/hilite/ 

The Herlihy decision is posted on the Internet at: 

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22CECILE+HERLIHY%22&rlt=CLID_QRYRLT464015158845&rltdb=CLID_DB449175058845&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA579175058845&sv=Split&tempinfo=word&vr=2.0

A public employer's motion seeking qualified immunity in the course of litigation must satisfy certain tests

The employee [Plaintiff] sued his former employer, [Defendants] contending [1] that he was dismissed from his position by Defendants without due process and [2] that his termination was an act of retaliation against him by Defendants in violation of the federal Civil Rights Act, 18 U.S.C. §1983, because he had filed a complaint against Defendants alleging racial discrimination . 

Although Defendants moved for summary judgment dismissing Plaintiff's action contending they were entitled to a qualified immunity, the federal District Court determined that they were not entitled to qualified immunity from Plaintiff's "18 U.S.C. §1983" claims "at the summary judgment stage" as "genuine issues of fact existed as to whether Defendants acted 'objectively reasonably' with regard to both claims — as Defendants must do in order to obtain qualified immunity." Defendants appealed.

The Circuit Court of Appeals, Second Circuit, said that the first issue to be resolved was whether it had jurisdiction to adjudicate Defendants' appeal. 

Conceding that an order denying a motion for summary judgment is generally not . . . appealable” except when “the summary judgment motion is based on a claim of qualified immunity,” the court pointed out that there was an exception to this exception. Citing Catone v. Spielmann, 149 F.3d 156, the Circuit Court then explained that “a defendant may not appeal a district court’s summary judgment order — even one addressing the availability of a qualified immunity defense — insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial.”*

In the event the District Court finds that the evidence was sufficient to create a jury issue, as it did in this instance, the Circuit Court said "that is the end of our review" as Defendants’ argument on appeal amounts to a challenge of whether the evidence was sufficient and, in the words of the Circuit Court, "we lack jurisdiction to review the denial of qualified immunity."

Here the District Court concluded that there disputed facts that could lead reasonable jurors to different conclusions about whether Defendants acted “objectively reasonably” and thus deserved qualified immunity. 

Further, observed the Circuit Court, "in assessing Defendants’ argument that they are entitled to qualified immunity on [Plaintiff's] retaliation claim, the District Court noted several additional issues of material fact to be resolved, particularly about whether Defendants acted with a retaliatory motive. As Plaintiff and Defendants differ on this factual issue of intent that is the basis of such a claim, the District Court once again concluded that there were facts were for the jury to consider and decide. 

As the District Court denied Defendants motion for qualified immunity and denied their motion for summary judgment on these claims, finding genuine issues of fact to be resolved at trial, the Circuit Court found that the lower court's ruling was not appealable and dismissed Defendants' appeal.

* In addition, the Circuit Court pointed out that it may not “entertain an interlocutory appeal in which a defendant contends that the district court committed an error of law in ruling that the plaintiff’s evidence was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense,” citing Salim v. Proulx, 93 F.3d 86. An interlocutory appeal is an appeal of a ruling by a trial court while other aspects of the litigation are still proceeding.

The decision is posted on the Internet at:
https://www.ca2.uscourts.gov/decisions/isysquery/3f7e2016-107a-4218-bded-98fc8f826c58/5/doc/19-2392_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3f7e2016-107a-4218-bded-98fc8f826c58/5/hilite/