richardson et al mcknight argued march decided june held prison guards employed private firm entitled qualified immunity suit prisoners charging violation pp four aspects wyatt cole found immunity private defendants charged invoking state replevin garnishment attachment statutes later declared unconstitutional instructive first deters state actors depriving individuals federally protected rights sometimes impose liability upon private individuals second distinction exists immunity suit frees one liability whether acted wrongly legal defenses may well involve essence wrong third history purposes underlying immunity determine whether private defendants enjoy protection suit fourth wyatt holding limited narrow question applicable private individuals pp history reveal firmly rooted tradition immunity applicable privately employed prison guards government employed prison guards may enjoyed kind immunity defense arising status public employees common law see procunier navarette correctional functionshave never exclusively public century private entities government carried prison management activities conclusive evidence historical tradition immunity private parties carrying functions pp immunity doctrine purposes also warrant immunity private prison guards mere performance governmental function support immunity private person especially one performs job without government supervision direction petitioners argument contrary overlooks certain important differences critical immunity perspective first important special government immunity producing concern protecting public unwarranted timidity part public officials less likely present private company subject competitive market pressures operates prison firm whose guards aggressive face damages raise costs thereby threatening replacement another contractor firm whose guards timid face replacement firms safer effective job records marketplace pressures present firm systematically organized performs independently statutorily obligated carry insurance must renew first contract three years provide private firm incentives avoid overly timid job performance extent employees differ government employees act within system responsible elected officials voters often characterized civil service rules providing employee security limiting government departments flexibility reward punish individual employees second privatization helps meet immunity related need ensure talented candidates deterred threat damages suits entering public service comprehensive insurance coverage increases likelihood employee indemnification extent reduces employment discouraging fear unwarranted liability since private firm also freed many civil service restraints unlike government department may offset increased employee liability risk higher pay extra benefits third lawsuits may distract private employees duties risk distraction alone sufficient grounds immunity tennessee decided extend sovereign immunity private prison operators moreover understood anticipated certain amount distraction pp closes three caveats first focus immunity liability second immunity question answered narrowly context arose thus involve private individual briefly associated government body serving adjunct government essential governmental activity acting close official supervision third opinion expressed issue whether petitioners might assert immunity special good faith defense pp affirmed breyer delivered opinion stevens souter ginsburg joined scalia filed dissenting opinion rehnquist kennedy thomas joined notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions wash ington typographical formal errors order corrections may made preliminary print goes press daryll richardson john walker petitioners ronnie lee mcknight writ certiorari appeals sixth circuit june justice breyer delivered opinion issue us whether prison guards employees private prison management firm entitled qualified immunity suit prisoners charging violation hold ronnie lee mcknight prisoner tennessee south central correctional center sccc brought federal constitutional tort action two prison guards darryl richardson john walker says guards injured placing upon extremely tight physical restraints thereby unlawfully subject ing deprivation right secured constitution rev stat richardson walker asserted qualified immunity lawsuits see harlow fitzgerald moved dismiss action district noted tennessee privatized management number correctional facilities consequently private firm state government employed guards see code ann et seq supp see generally cody bennett theprivatization correctional institutions tennessee experience vand rev outlining state history private correctional services held worked private company rather government law grant guards immunity suit therefore denied guards motion dismiss guards appealed sixth circuit see mitchell forsyth permitting interlocutory appeals qualified immunity determinations see also johnson jones behrens pelletier also ruled mcknight rees appeals conceded courts reached varying conclusions whether extent private sector defendants entitled immunities sort law provides governmental defendants see eagon elk city williams cert denied frazier bailey concluded primarily reasons public policy privately employed prison guards entitled immunity provided governmental counterparts granted certiorari review holding affirm take recent case wyatt cole pertinent authority considered whether private defendants charged liability invoking state replevin garnishment attachment statutes later declared unconstitutional entitled qualified immunity suit held find four aspects wyatt relevant first wyatt noted basically seeks deter state actors using badge authority deprive individuals federally guaranteed rights provide related relief emphasis added citing carey piphus see also owen independence imposes liability person acts color state statute ordinance regulation custom usage nonetheless wyatt reaffirmed sometimes impose liability upon private individual see also lugar edmondson oil second wyatt reiterated harlow supra reformulation qualified immunity doctrine see anderson creighton distinction exists immunity suit kinds legal defenses see also mitchell supra wyatt concurrence pointed legal defense may well involve essence wrong immunity frees one enjoys lawsuit whether acted wrongly kennedy concurring third wyatt specified legal source immunities pointed although creates species tort liability face admits immunities quoting imbler pachtman nonetheless accorded immunity tradition immunity firmly rooted common law supported strong policy reasons congress specifically provided wished abolish doctrine quoting owen independence fourth wyatt consider answer question one applicable private individuals irrespective nature relation government position kind liability issue rather wyatt explicitly limited holding called narrow question private persons conspire state officials answered question stating private defendants faced liability invoking state replevin garnishment attachment statute entitled immunity wyatt answer legal question us whether respondents two employees private prison management firm enjoy qualified immunity suit tell us however look history purposes underlie government employee immunity order find answer see also newport fact concerts owen supra imbler supra history reveal firmly rooted tradition immunity applicable privately employed prison guards correctional services undergone various transformations see shichor punishment profit shichor government employed prison guards may enjoyed kind immunity defense arising status public employees common law see procunier navarette extending qualified immunity state prison guards correctional functions never exclusively public shichor private individuals operated local jails century bowman hakim seidenstat privatizing justice system private contractors heavily involved prison management century shichor time including southern like tennessee leased entire prison systems private individuals companies frequently took complete control prison management including inmate labor discipline bowman hakim seidenstat privatizing correctional institutions see generally mckelvey american prisons study american social history prior pp describing century american prison system see also shichor de beaumont de tocqueville penitentiary system application france describing limited prison contracting system massachusetts pennsylvania private prison lease agreements like inmate suits seem prevalent enactment see generally mancini one dies get another found evidence common law provided mistreated prisoners prison leasing remedies againstmistreatment private lessors see dade coal haslett convict recover contractor injuries sustained lease private company boswell barnhart wife recover contractor chain gang related death husband dahlheim lemon contractor liable convict injuries tillar reynolds ark work farm owner liable inmate beating death weigel brown prison contractor liable unlawful whipping see also edwards pocahontas cc inmate recover municipal corporation injuries caused poor jail conditions hall turpentine private prison contractor subcontractor liable municipality escaped prisoner lease agreement see generally mancini supra discussing abuses century private lease system yet found evidence law gave purely private companies employees special immunity suits compare almango board supervisors albany county cause action private contractor contractor designated state instrumentality statute case dissent rests argument williams adams mass without prove existence tradition moreover clearly involve private prison operator actually supports point suggests immunity suit exist type intentional conduct issue case see williams supra battery issue case different character defendant might responsible see making clear case involves claim ordinary negligence lack ofheat items gross negligence implied malice intention prisoner bodily injury compare tower glover concluding state public defenders enjoy immunity suit conduct intentional history immunity intentional conduct established correctional functions england consistently public see generally encyclopedia brittanica prison ed webb webb english prisons local government webb historical sources indicate england relied upon private jailers manage detention prisoners middle ages well century shichor see also webb coke institutes common law forbade jailers subject prisoners pain torment whether harsh confinement leg irons otherwise see birdsong sd coke supra addison treatise law torts pp see also geo ch twelfth apparently authorized prisoner lawsuits recover damages addison supra apparently law provide kind immunity certain private defendants doctors lawyers performed services behest sovereign see tower supra bishop commentaries non contract law found indication general immunity might applied private individuals working profit research including sources parties cited reveals century earlier sometimes private contractors sometimes government carried prison management activities found conclusive evidence historical tradition immunity private partiescarrying functions history therefore provide significant support immunity claim compare briscoe lahue immunity witnesses pierson ray immunity judges police officers tenney brandhove immunity legislators whether immunity doctrine purposes warrant immunity private prison guards presents closer question wyatt consistent earlier precedent described doctrine purposes protecting government ability perform traditional functions providing immunity necessary preserve ability government officials serve public good ensure talented candidates deterred threat damages suits entering public service earlier precedent described immunity protecting public unwarranted timidity part public officials example encouraging vigorous exercise official authority butz economou contributing principled fearless decision making wood strickland quoting pierson supra responding concern threatened liability judge hand words dampen ardour resolute irresponsible public officials harlow quoting gregoire biddle hand cert denied see also mitchell lawsuits may distrac officials governmental duties guards argue purposes support immunity whether employer private public brief petitioners since private prison guards perform work state prison guards say theymust require immunity similar degree say however misread precedents sometimes applied functional approach immunity cases decide type immunity absolute qualified public officer receive see buckley fitzsimmons burns reed forrester white cleavinger saxner harlow never held mere performance governmental function make difference unlimited liability qualified immunity see tower especially private person performs job without government supervision direction indeed purely functional approach bristles difficulty particularly since many areas government private industry may engage fundamentally similar activities ranging electricity production waste disposal even mail delivery petitioners argument also overlook certain important differences immunity perspective critical first important special government immunity producing concern unwarranted timidity less likely present least special private company subject competitive market pressures operates prison competitive pressures mean firm whose guards aggressive face damages raise costs thereby threatening replacement also firm whose guards timid face threats replacement firms records demonstrate ability safer effective job ordinary marketplace pressures present private prison guards us work large multistate private prison management firm thomas bolinger badalamenti private adultcorrectional facility census ed listing corrections corporation america largest prison management concern firm systematically organized perform major administrative task profit cf code ann supp requiring firms contracting state demonstrate history successful operation correctional facilities performs task independently relatively less ongoing direct state supervision compare exempting private jails certain monitoring requiring inspectors examine publicly operated county jails month requiring tennessee correctional institute inspect public correctional facilities annual basis report findings inspections must buy insurance sufficient compensate victims civil rights torts since firm first contract expires three years performance disciplined state review see also pressure potentially competing firms try take place cf permitting state upon notice cancel contract time first year operation see also describing standards renewal contract words marketplace pressures provide private firm strong incentives avoid overly timid insufficiently vigorous unduly fearful non arduous employee job performance contract provisions including might permit employee indemnification avoid many civil service restrictions grant private firm freedom respond market pressures rewards penalties operate directly upon employees see extent employees us resemble private firms differ government employees say government employees efforts act within constitutional limits always often sacrifice otherwise effective performance duties rather say government employees typically act within different system work within system responsible elected officials voters vote rarely consider performance individual subdepartments civil servants specifically detail system often characterized multidepartment civil service rules providing employee security may limit incentives ability individual departments supervisors flexibly reward punish individual employees hence judicial determination effectiveness concerns warrant special immunity type protection respect latter governmental system prove need respect former consequently find special immunity related need encourage vigorous performance second privatization helps meet immunity related need ensure talented candidates deterred threat damages suits entering public service wyatt see also mitchell supra citing harlow supra part comprehensive insurance coverage requirements mentioned insurance increases likelihood employee indemnification extent reduces employment discouraging fear unwarranted liability potential applicants face privatization law also frees private prison management firm many civil service law restraints code ann permits private firm unlike government department offset increased employee liability risk higher pay extra benefits respect second government immunity related purpose difficult find special need immunity operate like private firms need operate like typical government department third lawsuits may well distrac employees duties mitchell quoting harlow risk distraction alone sufficient grounds immunity qualified immunity cases contemplate complete elimination lawsuit based distractions cf harlow supra officials subject suit violations clearly established rights significant tennessee law reserves certain important discretionary tasks related prison discipline parole good time state officials code ann given continual conceded need deterring constitutional violations sense firm tasks enormously different respect importance various publicly important tasks carried private firms persuaded threat distracting workers duties enough virtually justify providing immunity moreover tennessee decided extend sov ereign immunity private prison operators arguably appreciated decision increase contract prices degree code ann understood anticipated certain amount distraction close three caveats first focused questions immunity addressed whether defendants liable even though employed private firm appeals assumed decide liability district determine whether decision lugar edmondson oil defendants actually acted color state law second answered immunity question narrowly context arose context one private firm systematically organized assume major lengthy administrative task managing institution limited direct supervision government undertakes task profit potentially competition firms case involve private individual briefly associated government body serving adjunct government essential governmental activity acting close official supervision third wyatt explicitly stated decide whether private defendants might assert immunity special good faith defense said id foreclose possibility private defendants faced liability lugar edmondson oil entitled affirmative defense based good faith probable cause suits private rather governmental parties require plaintiffs carry additional burdens wyatt may appropriate balance struck permit correctional officers assert good faith defense rather qualified immunity however issue interlocutory appeal reasons judgment appeals affirmed daryll richardson john walker petitioners ronnie lee mcknight writ certiorari appeals sixth circuit june justice scalia chief justice justice kennedy justice thomas join dissenting procunier navarette held state prison officials including supervisory subordinate officers entitled qualified immunity suit brought today declares immunity unavailable employees private prison management firms perform duties state employed correctional officials exercise palpable form state police power may sued acting color state law holding supported neither common law tradition public policy contradicts settled practice determining immunity basis public function performed doctrine official immunity damages actions rooted assumption statute abolish immunities traditionally available common law see buckley fitzsimmons agree therefore must look history resolve case agree however petitioners claim immunity defeated provide actual case antedating contemporaneous enactment immunity successfully asserted private prison guard absence case explicit rejection immunity common law relies upon opinion observes private jailers existed century successfully sued prisoners one easily show government employed jailers successfully sued common law often mention possible immunity see schellenger civil liability sheriff officer charged keeping jail prison death injury prisoner annotating numerous cases sheriffs held liable indeed far research disclosed may case law support immunity private jailer context government jailer context jailer immunity case sort aware williams adams mass decided years became law case explicitly acknowledged issue jailer immunity novel ibid appears conferred immunity upon independent contractor truth tell procunier navarette supra established immunity state prison guards trouble history later immunity opinions done see burns reed tower glover simply set forth policy prescription stage jurisprudence irrational productive harmful policy consequences rely upon lack case support create artificial limitation upon scope doctrine prison guard immunity based case support say artificial limitation historical principles common law immunity based reflected jurisprudence plainly cover private prison guard cover nonprivate principles two immunity determined function status even specifically private status disqualifying ur cases clearly indicate immunity analysis rests functional categories status defendant briscoe lahue immunity flows rank title location within government nature responsibilities individual official cleavinger saxner quoting butz economou running cases fair consistency functional approach immunity questions approach examine nature functions particular official class officials lawfully entrusted seek evaluate effect exposure particular forms liability likelyhave appropriate exercise functions forrester white see also buckley burns malley briggs harlow fitzgerald imbler pachtman parties concede petitioners perform prototypically governmental function enforcement state imposed deprivation liberty one gives rise qualified immunity duty punishing criminals inherent sovereign power may committed agencies selected purpose agencies engaged duty stand far place state exercise political authority act private capacity later opinion seeks establish policy reasons denying private prison guards immunity accorded public ones haveindicated believe history judicially analyzed policy governs matter even terms attempted policy distinction unconvincing suggests two differences civil service prison guards employed private prison firms preclude special need give latter immunity first says unwarranted timidity part private guards less likely concern since companies subject market pressures encourage effective performance duties private firm maintain proper level order reasons replaced another one need qualified immunity facilitate maintenance order wrong several reasons first fanciful speak consequences market pressures regime public officials purchaser people money medium payment ultimately one prison management firm selected replace another prison management firm decision made political official renew contract see code ann supp government decision market choice state officers turn strict reviewing cost performance privately managed prisons publically managed ones chosen process come resemble market choice extent political actors resemblance extent political actors willing pay attention issue prison services among many issues vying attention willing place considerations cost quality service ahead political considerations personal friendship political alliances state ownership contractor etc secondly importantly however one assumes political regime bent emulating market purchase prison services almost certainly case short mismanagement severe provoke prison riot price discipline predominating factor regime selection contractor contractor price must depend upon costs lawsuits increase costs fearless maintenance discipline increases lawsuits incentive play discipline exist moreover even politicians zeal market emulation budget cutting waned prison management contract renewal virtually automatic cautious prison guards fewer lawsuits higher profits sum seems market competitive private prison managers even greater need civil service prison managers immunity incentive discipline second distinction state private prisons privatization helps meet immunity related need ensure talented candidates deterred threat damages suits entering public service prison guards ante internal quotation marks omitted privatization brings least brought case us statutory requirement insurance coverage civil rights claims assertedly increases likelihood ofemployee indemnification liberation many civil service law restraints prevent increased employee risk offset higher pay extra benefits ibid former civil rights liability insurance surely availability protection rather actual presence case hand decreases decrease doubt need immunity protection otherwise say private prison management firm required purchase insurance entitled immunity government run prison system purchase insurance less entitled immunity course civil rights liability insurance less available public entities private employers second factor liberation civil service limitations interesting one first simply philosophical matter fascinating learn one prime justifications immunity phenomenon civil service laws even exist enacted immunity created also philosophical matter poetic justice poetic revenge use one principal economic benefits prison sourcing namely avoidance civil service salary tenure encrustations justification legal rule rendering sourcing expensive course savings attributable sourcing wholly lost result today holding transferred part public prisoner plaintiffs lawyers result american bar association american federation government employees love apart philosophical fascination second factor subject objection first governments need civil service salary encrustations exempt prisons hence governments privateprison employers need immunity one possible rationale denying immunity private prison guards worth discussing albeit briefly theory implausible avoids mentioning even though primary reason given appeals decision affirms mcknight rees officers private prisons likely officers state prisons violate prisoners constitutional rights work profit motive hence added degree deterrence needed keep officers line appeals offered evidence support bald assertion private prison guards operate different incentives state prison guards gave hint prison guards might possibly increase employers profits violating constitutional rights one think private prison managers whose damages come pockets compared public prison managers whose damages come public purse anything careful training employees avoid constitutional infractions fact experimented prison privatization commonly report overall caliber services provided prisoners actually improved scope quality matters relating federal bureau prisons hearing subcommittee crime house committee judiciary concluding must observe since apparent reason neither history policy making immunity hinge upon distinction public private guards precise nature distinction must also remain obscure privityof contract separates two categories guards paid directly state public prison guards immune paid prison management company private prison guards immune rather employee versus independent contractor status even guards whose compensation paid directly state immune also supervised state official perhaps state supervision alone without direct payment enough confer immunity characterization alamango see supra suggests formal designation guards perhaps guards employer state instrumentality makes difference since say see sense public private distinction neither see precisely consists today decision says two sets prison guards indistinguishable ultimate source authority prisoners indistinguishable powers possess prisoners indistinguishable duties owe towards prisoners treated quite differently matter financial liability sure effect today decision purpose far tell artificially raise cost privatizing prisons whether cause privatization prohibitively expensive instead simply divert state funds saved spent additional prison services likely taxpayers prisoners suffer consequence neither precedent historical foundations policies underlying support result respectfully dissent footnotes williams held prisoners recover damages negligence master house correction official seems public officer head private company running prison example governing statute provided paid prisoners expenses supporting employing event default given action indebitatus assumpsit sum due shall deemed proper debt mass gen ch failed distribute prisoners rations articles food soap fuel necessaries directed county commissioner mayor aldermen boston subject fine opinionin williams says master house correction independent public officer relations confined therein deputy sheriff parties writ committed serve cites alamango proposition cause action private contractor contractor designated state instrumentality statute ante opinion alamango however cite statutory designation supervisors state instrumentality rely designation holding identify board supervisors mere instrumentality selected state sup said prison management firm master house corrections williams adams mass see supra one accept distinguishing case needed change outcome present suit thepointless formality designating contractor state instrumentality hardly rational resolution question us true even successfully defended lawsuits even lawsuits insured thinks relevant factor currently discussing private prison management firm must buy insurance sufficient compensate victims civil rights torts ante belief relevance factor must traceable ultimately belief existence free lunch obviously civil rights claims increase cost civil rights insurance increases