Blue Cross employees cooperating with police don’t get qualified immunity

March 18

John Sampson was a doctor who contracted with Blue Cross Blue Shield of Michigan to provide services to patients in exchange for reimbursement. BCBS suspected Sampson of fraud, and got the police to search his home for evidence and seize various funds. The procedural history is somewhat complicated, so I won’t go into the details. But it seems that a civil case and a criminal case against Sampson resulted; Sampson successfully argued for the return of the funds, but couldn’t suppress the evidence in the criminal case. All this is apparently still pending, but he also sued various detectives, BCBS, and various BCBS employees under § 1983 for violating various constitutional rights (including his Fourth Amendment rights).

Just last month, on February 18, in Sampson v. Blue Cross Blue Shield of Michigan, the district court for the Eastern District of Michigan ruled that the BCBS employees weren’t entitled to qualified immunity.

Before going any further, let’s have a little background on § 1983 and qualified immunity.

*     *     *

One of the most important federal civil-rights statutes is § 1983, a statute passed by Congress in 1871 that allows you to sue state officials who violate your constitutional rights. (What I’m going to say about § 1983 also applies to the Bivens doctrine, the analogous (but judge-made) doctrine, created in 1971, that allows you to sue federal officials who violate your constitutional rights. If you want to know more about § 1983 and Bivens, see my recent article on the recent Supreme Court case, Minneci v. Pollard, which I’ve blogged about here.)

And one important wrinkle in § 1983 is the doctrine of qualified immunity: not every state actor who violates your constitutional rights is liable; generally, to be liable, you have to have violated a constitutional right that was clearly established. As I wrote in this Reason.org blog post:

[D]espite 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.

The doctrine of qualified immunity turns out to be a bit confusing. In Wyatt v. Cole (1992), the Supreme Court denied qualified immunity to a private person in a private lawsuit using a state-law writ (“replevin“) to recover wrongfully detained property. The Supreme Court explained that the purpose behind qualified immunity was to avoid deterring qualified people from entering public service, and to prevent current public servants from being unduly timid in the performance of their duties. (The analysis of whether qualified immunity is available also involves a historical component of whether the immunity existed in 1871, but I’m skipping over that here.) In this case, these policy concerns didn’t apply: the private litigant was serving his private interest, not the public good, so whether or not he got immunity wouldn’t affect officials’ timidity or people’s willingness to enter public service.

Later, in Richardson v. McKnight (1997), the Supreme Court denied qualified immunity to employees of the Corrections Corporation of America, which contracted with the state to operate a private prison. There, too, policy considerations cut against immunity: when corporations operate in a competitive market, we don’t need to be concerned that they’ll be excessively timid,  because a firm whose employees act timidly can be replaced by the state in the next round of contracting.

But just recently in Filarsky v. Delia (2012), the Supreme Court granted qualified immunity to a private lawyer (Filarsky) working on an investigation under contract with the city. As I wrote in my previous post:

The interest in avoiding “unwarranted timidity,” the Court wrote, “is not limited to full-time public employees”: the government often needs to look outside its own workforce to find someone with specialized qualifications. In fact, this was one such case: the city of Rialto had hired Filarsky because it didn’t have a lawyer of its own with labor and employment expertise who had experience doing internal affairs investigations. Especially when such private parties work side-by-side with public employees, a rule that only public employees get immunity will tend to leave the private parties holding the bag, which will deter private parties from taking on such work. Moreover, allowing a suit against Filarsky would distract not only Filarsky but also the public employees involved in the case—the fire chief and others—who would probably have to testify. Finally, drawing a bright line between public and private parties doing work for government could give rise to thorny line-drawing problems, making the scope of immunity uncertain; “[a]n uncertain immunity is little better than no immunity at all.”

The Filarsky Court distinguished Wyatt because this wasn’t a case of someone serving his own private interest, and distinguished Richardson because it didn’t involve a corporate context.

*     *     *

Now back to Sampson’s case, and the claims of the BCBS employees, who helped the law enforcement officers execute the search warrant. Are they more like the private litigants in Wyatt? They’re not exactly similar, because they were helping law enforcement, not engaged in their own litigation (though there was a civil suit by BCBS as well). Are they more like the corporate employees in Richardson? Maybe. Are they more like the city’s contract investigator in Filarsky? Doesn’t seem much like it.

I would have guessed that these guys would lack qualified immunity, and the district court agreed. Here’s what it wrote:

1. Unwarranted Timidity On The Part of Public Officials

As to the first goal listed above, the Supreme Court has “called the government interest in avoiding ‘unwarranted timidity’ on the part of those engaged in the public’s business ‘the most important special government immunity-producing concern.’” [Filarsky.]

As explained in Wyatt, however, private parties such as the BCBS Defendants “hold no office requiring them to exercise discretion” and therefore extending immunity to them “would have no bearing on whether public officials are able to act forcefully and decisively in their jobs.”

Moreover, Plaintiffs allege that: 1) the BCBS Defendants initiated criminal proceedings to further their own private interests in collecting or freezing funds allegedly owed to BCBS; 2) a BCBS Defendant approached the prosecutors and the police; and 3) the BCBS Defendants gave them a three-inch binder of information pertaining to BCBS’s investigation of Dr. Sampson. The BCBS Defendants were not uninterested parties that the police, for some reason such as their professional expertise, asked to aid them in the execution of the search warrants. Like the private defendants in Wyatt, the BCBS Defendants are alleged to have used the government processes to achieve their own ends and were not “principally concerned with enhancing the public good.”

2. Ensuring That Talented Candidates Are Not Deterred From Entering Public Service

The Court finds that this consideration weighs against extending the protection of qualified immunity to the BCBS Defendants for the same reason it did in Wyatt. Because the BCBS Defendants hold no public office, extending them qualified immunity would have no bearing on whether qualified applicants enter public service.

It may discourage private individuals from assisting the government with the execution of search warrants if they are asked to do so (see Filarsky, noting “any private individual with a choice might think twice before accepting a government assignment”) but it does not discourage anyone from entering public service.

3. Guarding Against Distraction From Job Duties That Lawsuits Inevitably Create

“The public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits” is another factor to consider. This policy consideration does, arguably, weigh in favor of extending qualified immunity to the BCBS Defendants, based on language in Filarsky. If the case against the BCBS Defendants moves forward, then even if they are dismissed from the suit, the individually-named law enforcement officers will all likely be deposed and/or called to testify at trial. Thus, their performance of their ongoing police duties could be disrupted.

But this Court concludes that is simply not enough to afford BCBS the protection of qualified immunity under the circumstances alleged here, especially when there is no history of such immunity at common law.

The Court concludes that the BCBS Defendants may not invoke the defense of qualified immunity in this action.

Of course, this doesn’t mean that Sampson wins in any of his cases, but it does mean that if the BCBS employees are ultimately found to have violated his constitutional rights (which isn’t at all clear), they won’t be shielded by this personal immunity.

Bottom line: This case is broadly consistent with Wyatt, Richardson, and Filarsky, but it bears out my prediction at the time of Filarsky that this qualified immunity regime “will probably be the subject of substantial uncertainty and litigation in the years to come.”

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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