No. 96-318


on writ of certiorari to the united states court of appeals for the sixth circuit

[June 23, 1997]

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.

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 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 jailer immunity 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. [n.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 opinions have done, see, e.g., Burns v. Reed, 500 U.S. 478, 489-490 (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 (prison guard immunity) that was itself not based on case support. I say an 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, 509 U. S., at 269; Burns, 500 U. S., 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.

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. [n.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 termed `quasi judicial' officers, and their immunities being termed `quasi judicial' as well." Ibid. Likewise, witnesses 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. M1, col. 1. There is no more reason for treating private prison guards differently.

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 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, in state 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 [n.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 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 immunity related need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service" as prison guards. Ante, at 11 (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 pay or 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 limitations--is 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 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 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 towards 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 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.


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.

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 6. 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.

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 10. Belief in the relevance of this factor must be traceable, ultimately, to belief in the existence of a free lunch. Obviously, as civil rights claims increase, the cost of civil rights insurance increases.