OCTOBER TERM, 1996
Syllabus
RICHARDSON ET AL.
v. McKNIGHT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 96-318. Argued March 19, 1997-Decided June 23, 1997
Respondent McKnight, a prisoner at a Tennessee correctional
center whose management had been privatized, filed this
constitutional tort action under 42 U. S. C. § 1983 for physical
injuries inflicted by petitioner prison guards. The District Court
denied petitioners' motion to dismiss, finding that, since they
were employed by a private prison management firm, they were not
entitled to qualified immunity from § 1983 lawsuits. The Court of
Appeals affirmed.
Held: Prison guards employed by a private firm are not
entitled to a qualified immunity from suit by prisoners charging a
§ 1983 violation. Pp. 402-414.
(a) Four aspects of
Wyatt v.
Cole, 504 U. S. 158-in which
this Court found no § 1983 immunity for private defendants charged
with invoking state replevin, garnishment, and attachment statutes
later declared unconstitutional-are instructive here. First, §
1983-which deters state actors from depriving individuals of their
federally protected rightscan sometimes impose liability upon
private individuals. Second, a distinction exists between an
immunity from suit-which frees one from liability whether or not he
acted wrongly-and other legal defenseswhich may well involve the
essence of the wrong. Third, history and the purposes underlying §
1983 immunity determine whether private defendants enjoy protection
from suit. Fourth, the
Wyatt holding was limited to the
narrow question before the Court and is not applicable to
all private individuals. pp. 402-404.
(b) History does not reveal a firmly rooted tradition of
immunity applicable to privately employed prison guards. While
governmentemployed prison guards may have enjoyed a kind of
immunity defense arising out of their status as public employees at
common law, see
Procunier v.
Navarette, 434 U. S. 555, 561-562,
correctional functions have never been exclusively public. In the
19th century both private entities and government itself carried on
prison management activities. There is no conclusive evidence of a
historical tradition of immunity for private parties carrying out
these functions. Pp. 404-407.
(c) The immunity doctrine's purposes also do not warrant
immunity for private prison guards. Mere performance of a
governmental function does not support immunity for a private
person, especially one who
400
Syllabus
performs a job without government supervision or direction.
Petitioners' argument to the contrary overlooks certain important
differences that are critical from an immunity perspective. First,
the most important special government immunity-producing
concern-protecting the public from unwarranted timidity on the part
of public officials-is less likely present when a private company
subject to competitive market pressures operates a prison. A firm
whose guards are too aggressive will face damages that raise costs,
thereby threatening its replacement by another contractor, but a
firm whose guards are too timid will face replacement by firms with
safer and more effective job records. Such marketplace pressures
are present here, where the firm is systematically organized,
performs independently, is statutorily obligated to carry
insurance, and must renew its first contract after three years. And
they provide the private firm with incentives to avoid overly timid
job performance. To this extent, the employees differ from
government employees, who act within a system that is responsible
through elected officials to the voters and that is often
characterized by civil service rules providing employee security
but limiting the government departments' flexibility to reward or
punish individual employees. Second, privatization helps to meet
the immunity-related need to ensure that talented candidates are
not deterred by the threat of damages suits from entering public
service. Comprehensive insurance coverage increases the likelihood
of employee indemnification and to that extent reduces the
employment-discouraging fear of unwarranted liability. Since a
private firm is also freed from many civil service restraints, it,
unlike a government department, may offset increased employee
liability risk with higher payor extra benefits. Third, while
lawsuits may distract private employees from their duties, the risk
of distraction alone cannot be sufficient grounds for an immunity.
Tennessee, which has decided not to extend sovereign immunity to
private prison operators, can, moreover, be understood to have
anticipated a certain amount of distraction. Pp. 407-412.
(d) The Court closes with three caveats. First, the focus has
been on § 1983 immunity, not liability. Second, the immunity
question has been answered narrowly, in the context in which it
arose, and, thus, does not involve a private individual briefly
associated with a government body, serving as an adjunct to
government in an essential governmental activity, or acting under
close official supervision. Third, no opinion is expressed on the
issue whether petitioners might assert not immunity, but a special
good-faith defense. Pp.413-414.
88 F.3d
417, affirmed.
BREYER, J., delivered the OpInIOn of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J.,
filed a dis-
401
senting opinion, in which REHNQUIST, C. J., and KENNEDY and
THOMAS, JJ., joined,
post, p. 414.
Charles R. Ray argued the cause for petitioners. With him
on the briefs was
Robert S.
Catz.
David C.
Vladeck argued the cause for respondent.
With him on the brief were
Michael E. Tankersley and
Alan
B. Morrison.
Deputy Solicitor General Kneedler argued the cause for the
United States as amicus curiae urging affirmance. On the brief were
Acting Solicitor General Dellinger, Assistant Attorney General
Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney
General Preston, Cornelia T. L. Pillard, Barbara L. Herwig, and
John F. Daly. *
JUSTICE BREYER delivered the opinion of the Court.
The issue before us is whether prison guards who are employees
of a private prison management firm are entitled to a qualified
immunity from suit by prisoners charging a violation of 42 U. S. C.
§ 1983. We hold that they are not.
I
Ronnie Lee McKnight, a prisoner at Tennessee's South Central
Correctional Center (SCCC), brought this federal constitutional
tort action against two prison guards, Darryl Richardson and John
Walker. He says the guards injured him by placing upon him
extremely tight physical restraints, thereby unlawfully
"subject[ing]" him "to the deprivation of" a right "secured by the
Constitution" of the United States. Rev. Stat. § 1979, 42 U. S. C.
§ 1983. Richardson
*
Richard Ruda and
James I. Crowley filed a brief
for the International City/County Management Association et al. as
amicus curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Penny M.
Venetis and
Steven R. Shapiro; and for the American
Federation of Government Employees, AFL-CIO, by
Mark D. Roth
and
Anne M. Wagner.
402
and Walker asserted a qualified immunity from § 1983 lawsuits,
see
Harlow v.
Fitzgerald, 457 U. S. 800, 807
(1982), and moved to dismiss the action. The District Court noted
that Tennessee had "privatized" the management of a number of its
correctional facilities, and that consequently a private firm, not
the state government, employed the guards. See Tenn. Code Ann.
§41-24-101
et seq. (1990 and Supp. 1996); see generally Cody
& Bennett, The Privatization of Correctional Institutions: The
Tennessee Experience, 40 Vand. L. Rev. 829 (1987) (outlining
State's history with private correctional services). The court held
that, because they worked for a private company rather than the
government, the law did not grant the guards immunity from suit. It
therefore denied the guards' motion to dismiss. The guards appealed
to the Sixth Circuit. See
Mitchell v.
Forsyth,
472 U. S. 511,
530 (1985) (permitting interlocutory appeals of qualified immunity
determinations); see also
Johnson v.
Jones, 515 U. S. 304 (1995);
Behrens v.
Pelletier, 516 U. S. 299 (1996).
That court also ruled against them.
McKnight v.
Rees,
88 F.3d
417, 425 (CA6 1996). The Court of Appeals conceded that other
courts had reached varying conclusions about whether, or the extent
to which, private sector defendants are entitled to immunities of
the sort the law provides governmental defendants. See,
e. g.,
Eagon v.
Elk City, 72 F.3d
1480, 14891490 (CAlO 1996);
Williams v.
O'Leary,
55 F.3d
320, 323-324 (CA7), cert. denied, 516 U. S. 993 (1995);
Frazier v.
Bailey, 957 F.2d
920, 928-929 (CAl1992). But the court concluded, primarily for
reasons of "public policy," that the privately employed prison
guards were not entitled to the immunity provided their
governmental counterparts. 88 F. 3d, at 425. We granted certiorari
to review this holding. We now affirm.
II A
We take the Court's recent case,
Wyatt v.
Cole,
504 U. S. 158
(1992), as pertinent authority. The Court there considered whether
private defendants, charged with § 1983 liabil-
403
ity for "invoking state replevin, garnishment, and attachment
statutes" later declared unconstitutional were "entitled to
qualified immunity from suit."
Id., at 159. It held that
they were not.
Id., at 169. We find four aspects of
Wyatt relevant here.
First, as
Wyatt noted, § 1983 basically seeks "to deter
state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights" and to
provide related relief.
Id., at 161 (emphasis added) (citing
Carey v.
Piphus, 435 U. S. 247, 254-257
(1978)); see also
Owen v.
Independence, 445 U. S. 622, 654
(1980). It imposes liability only where a person acts "under color"
of a state "statute, ordinance, regulation, custom, or usage." 42
U. S. C. § 1983. Nonetheless,
Wyatt reaffirmed that § 1983
can
sometimes impose liability upon a private individual.
504 U. S., at 162; see also
Lugar v.
Edmondson Oil
Co., 457 U. S.
922, 924 (1982).
Second,
Wyatt reiterated that after
Harlow, supra,
and this Court's reformulation of the qualified immunity doctrine,
see
Anderson v.
Creighton, 483 U. S. 635, 645
(1987), a distinction exists between an "immunity from suit" and
other kinds of legal defenses. 504 U. S., at 166-167; see also
Mitchell, supra, at 526. As the
Wyatt concurrence
pointed out, a legal defense may well involve "the essence of the
wrong," while an immunity frees one who enjoys it from a lawsuit
whether or not he acted wrongly. 504 U. S., at 171172 (KENNEDY, J.,
concurring).
Third,
Wyatt specified the legal source of § 1983
immunities.
It pointed out that although § 1983 " 'creates a species of tort
liability that on its face admits of no immunities,'" id., at 163
(quoting
Imbler v.
Pachtman, 424 U. S. 409, 417
(1976)), this Court has nonetheless accorded immunity where a
" 'tradition of immunity was so firmly rooted in the common law
and was supported by such strong policy reasons that "Congress
would have specifically so provided had it wished to abolish the
doctrine."'" 504 U. S., at 164 (quoting Owen v.
Independence, supra, at 637).
404
The
Wyatt majority, in deciding whether or not the
private defendants enjoyed immunity, looked both to history and to
"the special policy concerns involved in suing government
officials." 504 U. S., at 167; see also
Mitchell, supra, at
526;
Harlow, supra, at 807;
Imbler v.
Pachtman,
supra, at 424. And in this respect-the relevant
sources
of the law-both the
Wyatt concurrence and the dissent seemed
to agree. Compare 504 U. S., at 169-171 (KENNEDY, J., concurring)
(existence of immunity depends upon "historical origins" and
"public policy"), with id., at 175-176 (REHNQUIST, C. J.,
dissenting) ("immunity" recognized where "similarly situated
defendant would have enjoyed an immunity at common law" or "when
important public policy concerns suggest the need for an
immunity").
Fourth,
Wyatt did not consider its answer to the question
before it as one applicable to
all private
individuals-irrespective of the nature of their relation to the
government, position, or the kind of liability at issue. Rather,
Wyatt explicitly limited its holding to what it called a
"narrow" question about "private persons ... who conspire with
state officials," id., at 168, and it answered that question by
stating that private defendants "faced with § 1983 liability for
invoking a state replevin, garnishment, or attachment statute" are
not entitled to immunity,
id., at 168-169.
Wyatt, then, did not answer the legal question before us,
whether petitioners-two employees of a private prison management
firm-enjoy a qualified immunity from suit under § 1983. It does
tell us, however, to look both to history and to the purposes that
underlie government employee immunity in order to find the answer.
Id., at 164; see also
Newport v.
Fact Concerts,
Inc., 453 U. S.
247, 259 (1981);
Owen, supra, at 638;
Imbler,
supra, at 424.
B
History does
not reveal a "firmly rooted" tradition of
immunity applicable to privately employed prison guards.
405
Correctional services in the United States have undergone
various transformations. See D. Shichor, Punishment for Profit
33,36 (1995) (Shichor).
Government-employed prison guards
may have enjoyed a kind of immunity defense arising out of their
status as public employees at common law. See
Procunier v.
Navarette, 434
U. S. 555, 561-562 (1978) (extending qualified immunity to
state prison guards). But correctional functions have never been
exclusively public. Shichor 33, 36. Private individuals operated
local jails in the 18th century, G. Bowman, S. Hakim, & P.
Seidenstat, Privatizing the United States Justice System 271, n. 1
(1992), and private contractors were heavily involved in prison
management during the 19th century. Shichor 33, 36.
During that time, some States, including southern States like
Tennessee, leased their entire prison systems to private
individuals or companies which frequently took complete control
over prison management, including inmate labor and discipline. G.
Bowman, S. Hakim, & P. Seidenstat, Privatizing Correctional
Institutions 42 (1993); see generally B. McKelvey, American
Prisons: A Study in American Social History Prior to 1915, pp.
172-180 (1968) (describing 19thcentury American prison system); see
also Shichor 34; G. de Beaumont & A. de Tocqueville, On the
Penitentiary System in the United States and Its Application in
France 35 (1833) (describing more limited prison contracting system
in Massachusetts and Pennsylvania). Private prison lease agreements
(like inmate suits) seem to have been more prevalent after § 1983's
enactment, see generally M. Mancini, One Dies, Get Another (1996),
but we have found evidence that the common law provided mistreated
prisoners in prison leasing States with remedies against
mistreatment by those private lessors. See,
e. g., Dade Coal
Co. v.
Haslett, 83 Ga. 549, 550551, 10 S. E. 435,
435-436 (1889) (convict can recover from contractor for injuries
sustained while on lease to private company);
Boswell v.
Barnhart, 96 Ga. 521, 522-523, 23 S. E. 414, 415 (1895)
(wife can recover from contractor for chain-
406
gang-related death of husband);
Dahlheim v.
Lemon,
45 F.2d 5, 228-230 (1891) (contractor liable for convict injuries);
Tillar v.
Reynolds, 96 Ark. 358, 360-361, 365-366,
131 S. W. 969, 970, 971-972 (1910) (work farm owner liable for
inmate beating death);
Weigel v.
Brown, 194 F.6d
2 (CA8 1912) (prison contractor liable for unlawful whipping);
see also
Edwards v.
Pocahontas, 47 F.2d 8 (CC Va.
1891) (inmate can recover from municipal corporation for injuries
caused by poor jail conditions);
Hall v.
O'Neil
Turpentine Co., 56 Fla. 324, 47 So. 609 (1908) (private prison
contractor and subcontractor liable to municipality for escaped
prisoner under lease agreement); see generally Mancini,
supra (discussing abuses of 19th-century private lease
system). Yet, we have found no evidence that the law gave purely
private companies or their employees any special immunity from such
suits. Cf.
Almango v.
Board of Supervisors of Albany
County, 32 N. Y. Sup. Ct. 551 (1881) (no cause of action
against private contractor where contractor designated state
instrumentality by statute). The case on which the dissent rests
its argument,
Williams v.
Adams, 85 Mass. 171 (1861)
(which could not-without more-prove the existence of such a
tradition and does not, moreover, clearly involve a private prison
operator) actually supports our point. It suggests that no immunity
from suit would exist for the type of intentional conduct at issue
in this case. See
ibid. (were "battery" at issue, the case
would be of a different "character" and "the defendant might be
responsible"); see id., at 176 (making clear that case only
involves claim of ordinary negligence for lack of heat and other
items, not "gross negligence," "implied malice," or "intention to
do the prisoner any bodily injury"); cf.
Tower v.
Glover, 467 U.
S. 914, 921 (1984) (concluding that state public defenders do
not enjoy immunity from suit where conduct intentional and no
history of immunity for intentional conduct was established).
Correctional functions in England have been more consistently
public, see generally 22 Encyclopedia Brittanica,
407
"Prison" 361-368 (11th ed. 1911); S. Webb & B. Webb, English
Prisons Under Local Government (1922) (Webb), but historical
sources indicate that England relied upon private jailers to manage
the detention of prisoners from the Middle Ages until well into the
18th century. Shichor 21; see also Webb 4-5; 1 E. Coke, Institutes
43 (1797). The common law forbade those jailers to subject" 'their
prisoners to any pain or torment,'" whether through harsh
confinement in leg irons, or otherwise. See
In re Birdsong,
39 F.5d
9, 601 (SD Ga. 1889); 1 Coke,
supra, at 315, 316, 381; 2
C. Addison, A Treatise on the Law of Torts § 1016, pp. 224-225
(1876); see also 4 Geo. IV; ch. 64, § X Twelfth. And it apparently
authorized prisoner lawsuits to recover damages. 2 Addison,
supra, § 1016. Apparently the law
did provide a kind
of immunity for certain private defendants, such as doctors or
lawyers who performed services at the behest of the sovereign. See
Tower, supra, at 921; J. Bishop, Commentaries on
Non-Contract Law §§ 704, 710 (1889). But we have found no
indication of any more general immunity that might have applied to
private individuals working for profit.
Our research, including the sources that the parties have cited,
reveals that in the 19th century (and earlier) sometimes private
contractors and sometimes government itself carried on prison
management activities. And we have found no conclusive evidence of
a historical tradition of immunity for private parties carrying out
these functions. History therefore does not provide significant
support for the immunity claim. Cf.
Briscoe v.
LaHue,
460 U. S. 325,
330-334 (1983) (immunity for witnesses);
Pierson v.
Ray,
386 U. S. 547, 554-555 (1967) (immunity for judges and police
officers);
Tenney v.
Brandhove, 341 U. S. 367, 372-376
(1951) (immunity for legislators).
C
Whether the immunity doctrine's
purposes warrant immunity
for private prison guards presents a closer question.
Wyatt,
consistent with earlier precedent, described the doc-
408
trine's purposes as protecting "government's ability to perform
its traditional functions" by providing immunity where "necessary
to preserve" the ability of government officials "to serve the
public good or to ensure that talented candidates were not deterred
by the threat of damages suits from entering public service." 504
U. S., at 167. Earlier precedent described immunity as protecting
the public from unwarranted timidity on the part of public
officials by, for example, "encouraging the vigorous exercise of
official authority,"
Butz v.
Economou, 438 U. S. 478, 506
(1978), by contributing to "'principled and fearless
decision-making,'"
Wood v.
Strickland, 420 U. S. 308, 319 (1975)
(quoting
Pierson, supra, at 554), and by responding to the
concern that threatened liability would, in Judge Hand's words,
"'dampen the ardour of all but the most resolute, or the most
irresponsible,'" public officials,
Harlow, 457 U. S., at 814
(quoting
Gregoire v.
Biddle, 177 F.2d 579, 581 (CA2
1949) (L. Hand, J.), cert. denied, 339 U. S. 949 (1950); see also
Mitchell, 472 U. S., at 526 (lawsuits may "distrac[t]
officials from their governmental duties").
The guards argue that those purposes support immunity whether
their employer is private or public. Brief for Petitioners 35-36.
Since private prison guards perform the same work as state prison
guards, they say, they must require immunity to a similar degree.
To say this, however, is to misread this Court's precedents. The
Court has sometimes applied a functional approach in immunity
cases, but only to decide which type of immunity-absolute or
qualified-a public officer should receive. See,
e. g.,
Buckley v.
Fitzsimmons, 509 U. S. 259 (1993);
Burns v.
Reed, 500 U. S. 478 (1991);
Forrester v.
White, 484 U. S. 219 (1988);
Cleavinger v.
Saxner, 474 U. S. 193 (1985);
Harlow, supra. And it never has held that the mere
performance of a governmental function could make the difference
between unlimited § 1983 liability and qualified immunity, see,
e. g., Tower,
409
467 U. S., at 922-923, especially for a private person who
performs a job without government supervision or direction. Indeed
a purely functional approach bristles with difficulty, particularly
since, in many areas, government and private industry may engage in
fundamentally similar activities, ranging from electricity
production, to waste disposal, to even mail delivery.
Petitioners' argument also overlook certain important
differences that, from an immunity perspective, are critical.
First, the most important special government immunityproducing
concern-unwarranted timidity-is less likely present, or at least is
not special, when a private company subject to competitive market
pressures operates a prison. Competitive pressures mean not only
that a firm whose guards are too aggressive will face damages that
raise costs, thereby threatening its replacement, but also that a
firm whose guards are too timid will face threats of replacement by
other firms with records that demonstrate their ability to do both
a safer and a more effective job.
These ordinary marketplace pressures are present here.
The private prison guards before us work for a large, multistate
private prison management firm. C. Thomas, D. Bolinger, & J.
Badalamenti, Private Adult Correctional Facility Census 1 (10th ed.
1997) (listing the Corrections Corporation of America as the
largest prison management concern in the United States). The firm
is systematically organized to perform a major administrative task
for profit. Cf. Tenn. Code Ann. §41-24-104 (Supp. 1996) (requiring
that firms contracting with the State demonstrate a history of
successful operation of correctional facilities). It performs that
task independently, with relatively less ongoing direct state
supervision. Compare § 41-4-140(c)(5) (exempting private jails from
certain monitoring) with §41-4-116 (requiring inspectors to examine
publicly operated county jails once a month or more) and
§41-4-140(a) (requiring Tennessee Cor-
410
rectional Institute to inspect public correctional facilities on
an annual basis and to report findings of such inspections). It
must buy insurance sufficient to compensate victims of civil rights
torts. §41-24-107. And, since the firm's first contract expires
after three years, §41-24-105(a), its performance is disciplined,
not only by state review, see §§ 4124-105(c)-(f), 41-24-109, but
also by pressure from potentially competing firms who can try to
take its place. Cf. §41-24-104(a)(4) (permitting State, upon
notice, to cancel contract at any time after first year of
operation); see also §§ 41-24-105(c) and (d) (describing standards
for renewal of contract).
In other words, marketplace pressures provide the private firm
with strong incentives to avoid overly timid, insufficiently
vigorous, unduly fearful, or "nonarduous" employee job performance.
And the contract's provisions-including those that might permit
employee indemnification and avoid many civil-service
restrictions-grant this private firm freedom to respond to those
market pressures through rewards and penalties that operate
directly upon its employees. See §41-24-111. To this extent, the
employees before us resemble those of other private firms and
differ from government employees.
This is not to say that government employees, in their efforts
to act within constitutional limits, will always, or often,
sacrifice the otherwise effective performance of their duties.
Rather, it is to say that government employees typically act within
a
different system. They work within a system that is
responsible through elected officials to voters who, when they
vote, rarely consider the performance of individual subdepartments
or civil servants specifically and in detail. And that system is
often characterized by multidepartment civil service rules that,
while providing employee security, may limit the incentives or the
ability of individual departments or supervisors flexibly to
reward, or to punish, individ-
411
ual employees. Hence a judicial determination that
"effectiveness" concerns warrant special immunity-type protection
in respect to this latter (governmental) system does not prove its
need in respect to the former. Consequently, we can find no
special immunity-related need to encourage vigorous
performance.
Second, "privatization" helps to meet the immunity-related need
"to ensure that talented candidates" are "not deterred by the
threat of damages suits from entering public service."
Wyatt, 504 U. S., at 167; see also
Mitchell, 472 U.
S., at 526 (citing
Harlow, 457 U. S., at 816). It does so in
part because of the comprehensive insurance-coverage requirements
just mentioned. The insurance increases the likelihood of employee
indemnification and to that extent reduces the
employment-discouraging fear of unwarranted liability potential
applicants face. Because privatization law also frees the private
prison-management firm from many civil service law restraints,
Tenn. Code Ann. §41-24-111 (1990), it permits the private firm,
unlike a government department, to offset any increased employee
liability risk with higher payor extra benefits. In respect to this
second governmentimmunity-related purpose then, it is difficult to
find a
special need for immunity, for the guards' employer
can operate like other private firms; it need not operate like a
typical government department.
Third, lawsuits may well "'distrac[t]''' these employees "'from
their ... duties,'"
Mitchell, supra, at 526 (quoting
Harlow, 457 U. S., at 816), but the risk of "distraction"
alone cannot be sufficient grounds for an immunity. Our qualified
immunity cases do not contemplate the complete elimination of
lawsuit-based distractions. Cf. id., at 818-819 (officials subject
to suit for violations of clearly established rights). And it is
significant that, here, Tennessee law reserves certain important
discretionary tasks-those related to prison discipline, to parole,
and to good time-for state officials.
412
Tenn. Code Ann. §41-24-110 (1990). Given a continual and
conceded need for deterring constitutional violations and our sense
that the firm's tasks are not enormously different in respect to
their importance from various other publicly important tasks
carried out by private firms, we are not persuaded that the threat
of distracting workers from their duties is enough virtually by
itself to justify providing an immunity. Moreover, Tennessee, which
has itself decided not to extend sovereign immunity to private
prison operators (and arguably appreciated that this decision would
increase contract prices to some degree), § 41-24-107, can be
understood to have anticipated a certain amount of distraction.
D
Our examination of history and purpose thus reveals nothing
special enough about the job or about its organizational structure
that would warrant providing these private prison guards with a
governmental immunity. The job is one that private industry might,
or might not, perform; and which history shows private firms did
sometimes perform without relevant immunities. The organizational
structure is one subject to the ordinary competitive pressures that
normally help private firms adjust their behavior in response to
the incentives that tort suits provide-pressures not necessarily
present in government departments. Since there are no special
reasons significantly favoring an extension of governmental
immunity, and since
Wyatt makes clear that private actors
are not
automatically immune (i.
e., § 1983 immunity
does not automatically follow § 1983 liability), we must conclude
that private prison guards, unlike those who work directly for the
government, do not enjoy immunity from suit in a § 1983 case. Cf.
Forrester v.
White, 484 U. S., at 224 (Officers "who
seek exemption from personal liability have the burden of showing
that such an exemption is justified"); see also
Butz, 438 U.
S., at 506.
413
III
We close with three caveats. First, we have focused only on
questions of § 1983 immunity and have not addressed whether the
defendants are liable under § 1983 even though they are employed by
a private firm. Because the Court of Appeals assumed, but did not
decide, § 1983 liability, it is for the District Court to determine
whether, under this Court's decision in
Lugar v.
Edmondson Oil Co., 457 U. S. 922 (1982),
defendants actually acted "under color of state law."
Second, we have answered the immunity question narrowly, in the
context in which it arose. That context is one in which a private
firm, systematically organized to assume a major lengthy
administrative task (managing an institution) with limited direct
supervision by the government, undertakes that task for profit and
potentially in competition with other firms. The case does not
involve a private individual briefly associated with a government
body, serving as an adjunct to government in an essential
governmental activity, or acting under close official
supervision.
Third,
Wyatt explicitly stated that it did not decide
whether or not the private defendants before it might assert, not
immunity, but a special "good-faith" defense. The Court said that
it
"d[id] not foreclose the possibility that private defendants
faced with § 1983 liability under Lugar v. Edmondson Oil
Co., 457 U. S.
922 (1982), could be entitled to an affirmative defense based
on good faith and/or probable cause or that § 1983 suits against
private, rather than governmental, parties could require plaintiffs
to carry additional burdens." Wyatt, 504 U. S., at 169.
But because those issues were not fairly before the Court, it
left "them for another day."
Ibid. Similarly, the Court of
Appeals in this case limited its holding to the question of
immunity. It said specifically that it
"may be that the appropriate balance to be struck here is to
permit the correctional officers to assert a good
414
faith defense, rather than qualified immunity .... However, that
issue is not before this Court in this interlocutory appeal." 88 F.
3d, at 425.
Like the Court in
Wyatt, and the Court of Appeals in this
case, we do not express a view on this last-mentioned question.
For these reasons the judgment of the Court of Appeals is
Affirmed.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE KENNEDY,
and JUSTICE THOMAS join, dissenting.
In
Procunier v.
Navarette, 434 U. S. 555 (1978), we
held that state prison officials, including both supervisory and
subordinate officers, are entitled to qualified immunity in a suit
brought under 42 U. S. C. § 1983. Today the Court declares that
this immunity is unavailable to employees of private prison
management firms, who perform the same duties as state-employed
correctional officials, who exercise the most palpable form of
state police power, and who may be sued for acting "under color of
state law." This holding is supported neither by common-law
tradition nor public policy, and contradicts our settled practice
of determining § 1983 immunity on the basis of the public function
being performed.
I
The doctrine of official immunity against damages actions under
§ 1983 is rooted in the assumption that that statute did not
abolish those immunities traditionally available at common law. See
Buckley v.
Fitzsimmons, 509 U. S. 259, 268
(1993). I agree with the Court, therefore, that we must look to
history to resolve this case. I do not agree with the Court,
however, that the petitioners' claim to immunity is defeated if
they cannot provide an actual case, antedating or contemporaneous
with the enactment of § 1983, in which immunity was successfully
asserted by a private prison
415
guard. It is only the absence of such a case, and not any
explicit rejection of immunity by any common-law court, that the
Court relies upon. The opinion observes that private jailers
existed in the 19th century, and that they were successfully sued
by prisoners. But one could just as easily show that
government-employed jailers were successfully sued at common law,
often with no mention of possible immunity, see Schellenger, Civil
liability of sheriff or other officer charged with keeping jail or
prison for death or injury of prisoner, 14 A. L. R. 2d 353 (1950)
(annotating numerous cases where sheriffs were held liable).
Indeed, as far as my research has disclosed, there may be more
case-law support for immunity in the private-jailer context than in
the government-jailer context. The only pre-§ 1983 jailerimmunity
case of any sort that I am aware of is
Williams v.
Adams, 85 Mass. 171 (1861), decided only 10 years before §
1983 became law. And that case, which explicitly acknowledged that
the issue of jailer immunity was "novel,"
ibid., appears to have
conferred immunity upon an independent contractor.1
The truth to tell,
Procunier v.
Navarette, supra,
which established § 1983 immunity for state prison guards, did not
trouble itself with history, as our later § 1983 immunity opin-
1
Williams held that prisoners could not recover damages
for negligence against the master of a house of correction. That
official seems to have been no more a "public officer" than the
head of a private company running a prison. For example, the
governing statute provided that he was to be paid by the prisoners
for his expenses in supporting and employing them, and in event of
their default he was given an action
indebitatus assumpsit
for the sum due, "which shall be deemed to be his own proper debt."
Mass. Gen. Stat., ch. 143, § 15 (1835). If he failed to distribute
to the prisoners those "rations or articles of food, soap, fuel, or
other necessaries" directed by the county commissioner (or the
mayor and aldermen of Boston), he was subject to a fine.
Id., § 45. The opinion in
Williams says that "[t]he
master of the house of correction is not an independent public
officer, having the same relations to those who are confined
therein that a deputy sheriff has to the parties to a writ
committed to him to serve." 85 Mass., at 173.
416
ions have done, see,
e. g., Burns v.
Reed,
500 U. S. 478,
489490 (1991);
Tower v.
Glover, 467 U. S. 914, 920
(1984), but simply set forth a policy prescription. At this stage
in our jurisprudence it is irrational, and productive of harmful
policy consequences, to rely upon lack of case support to create an
artificial limitation upon the scope of a doctrine (prisonguard
immunity) that was itself not based on case support. I sayan
artificial limitation, because the historical
principles on
which common-law immunity was based, and which are reflected in our
jurisprudence, plainly cover the private prison guard if they cover
the nonprivate. Those principles are two: (1) immunity is
determined by function, not status, and (2) even more specifically,
private status is not disqualifying.
"[O]ur cases clearly indicate that immunity analysis rests on
functional categories, not on the status of the defendant."
Briscoe v.
LaHue, 460 U. S. 325, 342
(1983). Immunity "flows not from rank or title or 'location within
the Government,' ... but from the nature of the responsibilities of
the individual official."
Cleavinger v.
Saxner,
474 U. S. 193,201
(1985), quoting
Butz v.
Economou, 438 U. S. 478 (1978).
"Running through our cases, with fair consistency, is a
'functional' approach to immunity questions .... Under that
approach, we examine the nature of the functions with which a
particular official or class of officials has been lawfully
entrusted, and we seek to evaluate the effect that exposure to
particular forms of liability would likely have on the appropriate
exercise of those functions."
Forrester v.
White,
484 U. S. 219,
224 (1988). See also
Buckley, supra, at 269;
Burns,
supra, at 484-486;
Malley v.
Briggs, 475 U. S. 335, 342-343
(1986);
Harlow v.
Fitzgerald, 457 U. S. 800, 810-811
(1982); Imbler v.
Pachtman, 424 U. S. 409, 420-429
(1976). The parties concede that petitioners perform a
prototypically governmental function (enforcement of state-imposed
deprivation of liberty), and one that gives rise to qualified
immunity.
417
The point that function rather than status governs the immunity
determination is demonstrated in a prison-guard case virtually
contemporaneous with the enactment of § 1983.
Alamango v.
Board of Supervisors of Albany Cty., 32 N. Y. Sup. Ct. 551
(1881), held that supervisors charged under state law with
maintaining a penitentiary were immune from prisoner lawsuits.
Although they were not formally state officers, the court
emphasized the irrelevance of this fact:
"The duty of punishing criminals is inherent in the Sovereign
power. It may be committed to agencies selected for that purpose,
but such agencies, while engaged in that duty, stand so far in the
place of the State and exercise its political authority, and do not
act in any private capacity." Id., at 552.2
Private individuals have regularly been accorded immunity when
they perform a governmental function that qualifies. We have long
recognized the absolute immunity of grand jurors, noting that like
prosecutors and judges they must "exercise a discretionary judgment
on the basis of evidence presented to them."
Imbler, 424 U.
S., at 423, n. 20. "It is the functional comparability of [grand
jurors'] judgments to those of the judge that has resulted in
[their] being referred to as 'quasi-judicial' officers, and their
immunities being termed 'quasi-judicial' as well."
Ibid.
Likewise, wit-
2 The Court cites Alamango for the proposition that there is "no
cause of action against [a] private contractor where [the]
contractor [is] designated [a] state instrumentality by statute."
Ante, at 406. The opinion in Alamango, however, does not
cite any statutory designation of the supervisors as a "state
instrumentality," and does not rely on such a designation for its
holding. It does identify the Board of Supervisors as "a mere
instrumentality selected by the State," 32 N. Y. Sup. Ct., at 552,
but the same could be said of the prison management firm here (or
the master of the house of corrections in Williams v. Adams, 85
Mass. 171 (1861), see n. 1, supra). If one were to accept the
Court's distinguishing of this case, all that would be needed to
change the outcome in the present suit is the pointless formality
of designating the contractor a "state instrumentality"-hardly a
rational resolution of the question before us.
418
nesses who testify in court proceedings have enjoyed immunity,
regardless of whether they were government employees. "[T]he common
law," we have observed, "provided absolute immunity from subsequent
damages liability for all
persons-governmental or
otherwise-who were integral parts of the judicial process."
Briscoe, supra, at 335 (emphasis added). I think it highly
unlikely that we would deny prosecutorial immunity to those private
attorneys increasingly employed by various jurisdictions in this
country to conduct high-visibility criminal prosecutions. See,
e. g., Kaplan, State Hires Private Lawyer for Bryant Family
Trial, Los Angeles Times, Apr. 28, 1993, p. B4, col. 2; Estrich, On
Building the Strongest Possible Prosecution Team, Los Angeles
Times, July 10, 1994, p. Ml, col. 1. There is no more reason for
treating private prison guards differently.
II
Later in its opinion, the Court seeks to establish that there
are policy reasons for denying to private prison guards the
immunity accorded to public ones. As I have indicated above, I
believe that history and not judicially analyzed policy governs
this matter-but even on its own terms the Court's attempted policy
distinction is unconvincing. The Court suggests two differences
between civil-service prison guards and those employed by private
prison firms which preclude any "special" need to give the latter
immunity. First, the Court says that "unwarranted timidity" on the
part of private guards is less likely to be a concern, since their
companies are subject to market pressures that encourage them to be
effective in the performance of their duties. If a private firm
does not maintain a proper level of order, the Court reasons, it
will be replaced by another one-so there is no need for qualified
immunity to facilitate the maintenance of order.
This is wrong for several reasons. First of all, it is fanciful
to speak of the consequences of "market" pressures in a
419
regime where public officials are the only purchaser, and other
people's money the medium of payment. Ultimately, one
prison-management firm will be selected to replace another
prison-management firm only if a decision is made by some
political official not to renew the contract. See Tenn. Code
Ann. §§41-24-103 to 105 (Supp. 1996). This is a government
decision, not a market choice. If state officers turn out to be
more strict in reviewing the cost and performance of privately
managed prisons than of publically managed ones, it will only be
because they have
chosen to be so. The process can come to
resemble a market choice only to the extent that political actors
will such resemblance-that is, to the extent that political
actors (1) are willing to pay attention to the issue of prison
services, among the many issues vying for their attention, and (2)
are willing to place considerations of cost and quality of service
ahead of such political considerations as personal friendship,
political alliances, instate ownership of the contractor, etc.
Secondly and more importantly, however, if one assumes a political
regime that
is bent on emulating the market in its purchase
of prison services, it is almost certainly the case that, short of
mismanagement so severe as to provoke a prison riot,
price
(not discipline) will be the predominating factor in such a
regime's selection of a contractor. A contractor's price must
depend upon its costs; lawsuits increase costs; 3 and "fearless"
maintenance of discipline increases lawsuits. The incentive to
down-play discipline will exist, moreover, even in those States
where the politicians' zeal for market emulation and budget cutting
has waned, and where prison-management
3 This is true even of successfully defended lawsuits, and even
of lawsuits that have been insured against. The Court thinks it
relevant to the factor I am currently discussing that the private
prison-management firm "must buy insurance sufficient to compensate
victims of civil rights torts,"
ante, at 410. Belief in the
relevance of this factor must be traceable, ultimately, to belief
in the existence of a free lunch. Obviously, as civilrights claims
increase, the cost of civil-rights insurance increases.
420
contract renewal is virtually automatic: the more cautious the
prison guards, the fewer the lawsuits, the higher the profits. In
sum, it seems that "market-competitive" private prison managers
have even greater need than civil-service prison managers for
immunity as an incentive to discipline.
The Court's second distinction between state and private prisons
is that privatization "helps to meet the immunityrelated need to
ensure that talented candidates are not deterred by the threat of
damages suits from entering public service" as prison guards.
Ante, at 411 (internal quotation marks omitted). This is so
because privatization brings with it (or at least has brought with
it in the case before us) (1) a statutory requirement for insurance
coverage against civil-rights claims, which assertedly "increases
the likelihood of employee indemnification," and (2) a liberation
"from many civil service law restraints" which prevent increased
employee risk from being "offset ... with higher payor extra
benefits,"
ibid. As for the former (civil-rights liability
insurance): surely it is the
availability of that
protection, rather than its actual presence in the case at hand,
which decreases (if it does decrease, which I doubt) the
need for immunity protection. (Otherwise, the Court would
have to say that a private prison-management firm that is not
required to purchase insurance, and does not do so, is more
entitled to immunity; and that a government-run prison system that
does purchase insurance is
less entitled to
immunity.) And of course civil-rights liability insurance is no
less
available to public entities than to private employers.
But the second factor-liberation from civil-service limitationsis
the more interesting one. First of all, simply as a philosophical
matter it is fascinating to learn that one of the prime
justifications for § 1983 immunity should be a phenomenon
(civil-service laws) that did not even exist when § 1983 was
enacted and the immunity created. Also as a philosophical matter,
it is poetic justice (or poetic revenge) that the Court
421
should use one of the principal economic benefits of "prison
out-sourcing "-namely, the avoidance of civil-service salary and
tenure encrustations-as the justification for a legal rule
rendering out-sourcing more expensive. Of course the savings
attributable to out-sourcing will not be wholly lost as a result of
today's holding; they will be transferred in part from the public
to prisoner-plaintiffs and to lawyers. It is a result that only the
American Bar Association and the American Federation of Government
Employees could love. But apart from philosophical fascination,
this second factor is subject to the same objection as the first:
governments
need not have civil-service salary encrustations
(or can exempt prisons from them); and hence governments, no more
than private prison employers, have any
need for § 1983
immunity.
There is one more possible rationale for denying immunity to
private prison guards worth discussing, albeit briefly. It is a
theory so implausible that the Court avoids mentioning it, even
though it was the primary reason given in the Court of Appeals
decision that the Court affirms. McKnight v.
Rees, 88 F.3d
417, 424-425 (CA6 1996). It is that officers of private prisons
are more likely than officers of state prisons to violate
prisoners' constitutional rights because they work for a profit
motive, and hence an added degree of deterrence is needed to keep
these officers in line. The Court of Appeals offered no evidence to
support its bald assertion that private prison guards operate with
different incentives than state prison guards, and gave no hint as
to how prison guards might possibly increase their employers'
profits by violating constitutional rights. One would think that
private prison managers, whose § 1983 damages come out of their own
pockets, as compared with public prison managers, whose § 1983
damages come out of the public purse, would, if anything, be more
careful in training their employees to avoid constitutional
infractions. And in fact, States having experimented with prison
privatization commonly report
422
that the overall caliber of the services provided to prisoners
has actually improved in scope and quality. Matters Relating To The
Federal Bureau Of Prisons: Hearing before the Subcommittee on Crime
of the House Committee on the Judiciary, 104th Cong., 1st Sess.,
110 (1995).
***
In concluding, I must observe that since there is no apparent
reason, neither in history nor in policy, for making
immunity hinge upon the Court's distinction between public and
private guards, the precise
nature of that distinction must
also remain obscure. Is it privity of contract that separates the
two categories-so that guards paid directly by the State are
"public" prison guards and immune, but those paid by a
prison-management company "private" prison guards and not immune?
Or is it rather "employee" versus "independent contractor"
status-so that even guards whose compensation is paid directly by
the State are not immune if they are not also supervised by a state
official? Or is perhaps state supervision alone (without direct
payment) enough to confer immunity? Or is it (as the Court's
characterization of
Alamango, see n. 2,
supra,
suggests) the formal designation of the guards, or perhaps of the
guards' employer, as a "state instrumentality" that makes the
difference? Since, as I say, I see no sense in the public-private
distinction, neither do I see what precisely it consists of.
Today's decision says that two sets of prison guards who are
indistinguishable in the ultimate source of their authority over
prisoners, indistinguishable in the powers that they possess over
prisoners, and indistinguishable in the duties that they owe toward
prisoners, are to be treated quite differently in the matter of
their financial liability. The only sure effect of today's
decision-and the only purpose, as far as I can tell-is that it will
artificially raise the cost of privatizing prisons. Whether this
will cause privatization to be prohibitively expensive, or instead
simply divert state funds
423
that could have been saved or spent on additional prison
services, it is likely that taxpayers and prisoners will suffer as
a consequence. Neither our precedent, nor the historical
foundations of § 1983, nor the policies underlying § 1983, support
this result.
I respectfully dissent.
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