OCTOBER TERM, 1996
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
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-