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No. 96-318


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

[June 23, 1997]

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.

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 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. ___ (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, 1489-1490 (CA10 1996); Williams v. O'Leary, 55 F. 3d 320, 323-24 (CA7), cert. denied, 516 U. S. ___ (1995); Frazier v. Bailey, 957 F. 2d 920, 928-929 (CA1 1992). 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.

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 liability 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 171-172 (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, 445 U.S. 622, 637 (1980)).

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." Id., at 167; see also Mitchell, supra, at 526; Harlow, 457 U. S., 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") and 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 respondents--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.

History does not reveal a "firmly rooted" tradition of immunity applicable to privately employed prison guards. 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 19th century American prison system); see also Shichor 34; G. de Beaumont and 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 t
he 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, 550-551, 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 gang related death of husband); Dahlheim v. Lemon, 45 F. 225, 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. 652 (CA8 1912) (prison contractor liable for unlawful whipping); see also Edwards v. Pocahontas, 47 F. 268 (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. Compare Almango v. Board of Supervisors of Albany County, 32 N. Y. 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 Williams, supra, at 171 (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"); compare 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, "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. 599, 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 no found no conclusive evidence of an historical tradition of immunity for private parties carrying out these functions. History therefore does not provide significant support for the immunity claim. Compare 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).

Whether the immunity doctrine's purposes warrant immunity for private prison guards presents a closer question. Wyatt, consistent with earlier precedent, described the doctrine'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, 457 U. S. at 800. 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, 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 immunity producing 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 Correctional 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 §§41-24-105(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 "non arduous" 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, individual 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, supra, at 526 (citing Harlow, supra, 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 pay or extra benefits. In respect to this second government immunity 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, 472 U. S., 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. Harlow, supra, 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. 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), Tenn. Code Ann. §41-24-107, can be understood to have anticipated a certain amount of distraction.


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. 219, 224 (1988) (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.

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 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