Richardson v. McKnight – Oral Argument – March 19, 1997

Media for Richardson v. McKnight

Audio Transcription for Opinion Announcement – June 23, 1997 in Richardson v. McKnight

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William H. Rehnquist:

We’ll hear argument next in Number 96-318, Daryll Richardson and John Walker v. McKnight.

Mr. Ray, you may proceed whenever you want to.

Charles R. Ray:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether correctional officers who are employed by a private concern, who perform traditional and historical police power functions, and act under the color of law for 1983 purposes, should have the benefit of qualified immunity.

Firstly, we would like to put forth the proposition that should this Court extend qualified immunity to correctional officers of this nature, that the floodgates will not open, and qualified immunity will not be willy nilly conferred.

Firstly, there are thousands, literally… maybe hundreds of thousands of contractors who contract with the State of Tennessee, but only those who are found to act under the color of State law as defined by this Court’s jurisprudence in Jackson v. Metropolitan Edison would be needful of qualified immunity.

Secondly, only objectively reasonable actions on the part of these private actors would give rise to qualified immunity.

Of course, if their actions are not objectively reasonable under this Court’s jurisprudence they would not have the benefit of qualified immunity.

Ruth Bader Ginsburg:

Mr. Ray, would you put together the theory and the fact for me, because just looking at what is alleged here, what would… how would it not be clearly established that it’s a violation to take someone who was over 300 pounds and put them in these tight restraints that are bound to cause extreme pain?

We are talking about qualified immunity and would a reasonable officer understand from the clearly established law that you don’t do this.

That is my problem with this case.

Charles R. Ray:

Justice Ginsburg, we never got to that point, and that’s the issue.

Ruth Bader Ginsburg:

What would be the defense?

What would be the defense for these allegations?

Charles R. Ray:

Well, perhaps under Woods v. Strickland, if Mr. McKnight can establish that the acts of our officers that he alleges were not objectively reasonable, then we don’t have benefit of qualified immunity.

That is obvious.

But the district court–

Ruth Bader Ginsburg:

Well, maybe it’s an academic question, that–

Charles R. Ray:

–Oh, that question is not academic, in that there are literally hundreds of vexatious and frivolous lawsuits filed–

Ruth Bader Ginsburg:

–Oh, but I’m talking about in the context of this case.

Charles R. Ray:

–In the context of this case, Mr. McKnight may well establish, if this Court should extend qualified immunity to correctional officers who are employed by private concerns, that our two officers don’t have the benefit.

William H. Rehnquist:

The Sixth Circuit decided this case on the basis that qualified immunity wasn’t available to private contractors.

Charles R. Ray:

That’s correct, Mr. Chief Justice.

William H. Rehnquist:

So that’s why we’ve got it here.

Charles R. Ray:

That’s why it’s here.

Duncan v. Peck, which is their case–

Ruth Bader Ginsburg:

My question I asked you is, what good would qualified immunity do them if they had it?

Charles R. Ray:

–Well, in cases on down the road where their actions were objectively reasonable the litigation–

Ruth Bader Ginsburg:

But not cases on down the road.

In this case.

Ruth Bader Ginsburg:

I mean, we do have to have a live case, or a real case or controversy, so if you prevail, what good would that do to these parties?

Charles R. Ray:

–I would submit, Justice Ginsburg, that this case would still have to be remanded to the district court for that specific finding, that their actions were not objectively reasonable and they don’t have the benefit of qualified immunity.

Ruth Bader Ginsburg:

Well, you make the argument for them when you’re saying, now I have the benefit of this qualified immunity defense, so, district court, they are qualified immune, and so the district court goes, tell me what wasn’t clearly established in relation to these facts.

Charles R. Ray:

Well, the specific issue before this Court is, we didn’t get to that point.

The district court said, based on the jurisprudence of Manis v. Corrections Corporation of America, established by this Court, you don’t have qualified immunity, Mr. Ray.

You’re out of here.

That’s what the Sixth Circuit said.

Ruth Bader Ginsburg:

Yes, but I’d just like you to tell me, suppose he had qualified immunity.

What could he do with it?

He could try to prove his actions were objectively reasonable.

Charles R. Ray:

That’s correct, Mr. Chief Justice, and again, we may fail on that issue, Justice Ginsburg, but the issue before this Court and what we want decided is the fact that qualified immunity should be extended to these individuals who act under the color of State law for 1983 purposes, are subjected to suit on a day-by-day basis, and they perform traditional historical police powers that this Court has extended qualified immunity to their public counterparts in Navarette.

So we would submit that though we may ultimately not prevail on that question… that question is not before us here… the question is whether we get over the first hurdle, i.e.–

Ruth Bader Ginsburg:

The Sixth Circuit suggested that there might be another standard short of qualified immunity and said maybe good faith–

Charles R. Ray:

–The good faith defense.

That’s correct.

But the good faith defense, as you well know, Justice Ginsburg, still allows us to be subjected to the discovery process.

To discover the subjective mind set of my clients we go through what may be needless and extended litigation, expensive litigation, whereas if qualified immunity applies, of course, that ends the dispute at that point.

So I would submit that the difference between a good faith defense and qualified immunity is quite, quite different, and the benefits that would be conferred not on my two petitioners, but on the citizens of the State of Tennessee, who would not have to bear the burden of litigating what may turn out to be a frivolous and vexatious lawsuit… which again this Court’s jurisprudence from Harlow Ford has made it a consideration that the benefit you want to confer is not on the actors, but upon the citizens, who will benefit from not having their officers, who perform a traditional governmental function that utilizes a great deal of discretion, from being impeded, deterred, made timid by threat of litigation, and threatened with litigation.

So we would submit that the question here again is whether you confer qualified immunity on officers who historically have and do provide a fundamental governmental function.

Antonin Scalia:

–Mr. Ray, they do historically provide a… provide what was historically a governmental function, but have they historically had such immunity?

I mean, we said in our earlier cases that this qualified immunity is a matter… it’s not in the statute, but we say that it came along with the history of the statute.

That was simply what existed when this statute was passed, and therefore we think it exists today.

Now, have you given us any evidence that a private individual not employed by the State has ever been given immunity?

Charles R. Ray:

Justice Scalia, if I could address prison guards historically in the State of Tennessee–

Antonin Scalia:

Anybody historically, even if you could come up with a medical officer who was privately contracted for who somehow was given immunity, or a private policeman.

Anything.

I don’t know that you’ve shown even one example of this historical exception.

Charles R. Ray:

–I would submit that historically the Attorney General of the United States at one time was allowed to have a private law practice, and when acting in his official function for the Government that I’m sure that immunity would attach to him in any official acts.

In England, prior to 1871, when this particular statute was promulgated, lawyers were both public prosecutors and private prosecutors, and when they were acting as public prosecutors I would submit that immunity attached to them.

Those are the only examples I can suggest, but let me state that–

Antonin Scalia:

It’s a good one.

Charles R. Ray:

–Pierson v. Ray, this Court started out talking about a good faith immunity, which ultimately developed over the course of this Court’s jurisprudence to the qualified immunity doctrine.

Pierson v. Ray dealt with police officers having a good faith defense to malicious prosecution actions.

In Tennessee, pursuant to statute TCA 4-3-609, correctional officers have the same core functions, the same grant of power as police officers do.

They have the right to bear arms.

They have the right to take people into custody, effectuate search and seizures, secure their facility from both outside invaders or quell disturbances inside.

So I would submit that Pierson v. Ray… I think it was footnote 7 where Mr. Justice White cited ample precedent that there was a historical basis for police officers having… excuse me.

That was Navarette, footnote 7, that correctional officers have qualified immunity.

Given the historical basis in Tennessee of there being coextensive powers between police officers and correctional officers, I would submit that the historical basis is there.

Stephen G. Breyer:

What about ordinary tort law?

That is, a policeman or a correctional officer working for the Government puts shackles on somebody, or hits them or whatever.

That’s a tort.

That’s a battery.

Charles R. Ray:

That’s correct.

Justice Breyer.

Stephen G. Breyer:

And there must be their… State officials, some kind of State law tort immunity that gives a degree of leeway to a State officer who commits the battery where he does it in good faith.

Is there any case, anywhere in any of these jurisdictions, that tells us in respect to ordinary tort law whether a private correctional official is treated similarly?

Charles R. Ray:

The… if I may answer it this way, Justice Breyer, the public correctional officer, sovereign immunity would suffice there.

Stephen G. Breyer:

Not a suit individually against the officer.

Charles R. Ray:

Right.

But you would go through the court of claims.

Stephen G. Breyer:

You sue the officer individually, there will be some kind of public-based, not immunity, but it will be a defense, and for good faith, et cetera, and I just wonder if there’s any case that you’ve come across… it seems to me by now it should have come across somewhere… ordinary, garden variety tort law.

Charles R. Ray:

The answer to that is no.

Stephen G. Breyer:

The answer to what is no–

Charles R. Ray:

The answer is no, there’s no–

–that you haven’t found a case, or there’s no case–

Charles R. Ray:

–I have found no case, but I would submit that our private correctional officers do not have the benefit of sovereign immunity and therefore would be subject to tort law and subject to being sued in State jurisdictions.

Stephen G. Breyer:

–And without a defense, so that if in fact he commits a battery by putting the shackle on, it is a defense to say I was acting according to law, period.

But if it turns out he was wrong that in fact there are too many shackles, it’s a battery.

Charles R. Ray:

He must pay the piper.

Antonin Scalia:

And no qualified immunity defense under State law, you say.

Not for the private person but for the public.

Charles R. Ray:

No, sir.

Not for the private person.

Sandra Day O’Connor:

And no good faith defense?

Charles R. Ray:

Oh, the good faith defense would be there, Your Honor.

Stephen G. Breyer:

Now, for the public person, yes.

The question is whether for the private person, if it’s not available to you and me in our private capacities when we happen to go out as a joke and put shackles on somebody… not much of a joke, but do you see what I’m driving at?

Charles R. Ray:

I see what you’re driving at, Justice Breyer, and I still believe that as you’ve stated your question the good faith defense would be available to that private correctional officer but not in the context of having any sort of immunity.

It would just be a common law defense to… I acted in good… just as if a private security guard at Wal-Mart took someone into custody thinking they were a shoplifter and they turned out not to be a shoplifter, then they’re subject to malicious prose–

Stephen G. Breyer:

I mean, I don’t know if you want to comment on this, but where I’m having trouble with this case, and why I find it difficult, is because there are three interrelated things: a) to what extent does the 1983 apply in the first place when the person is private, b) to what extent is there ordinary tort law immunity, same or different from a private person, and 3) how do we fit into those answers this question here about whether there’s an immunity?

If that’s too general and vague for you to–

Charles R. Ray:

–I’ll try to address those–

–That’s what’s in my mind.

Charles R. Ray:

–Justice Breyer.

Number 1 is without question that we act under color of State law and are amenable to suit under 42 U.S. section 1983 because we do perform those core governmental functions that historically and traditionally have been the police powers of the State, so I think it’s not questioned by anyone, at least not by us, that we are amenable to suit under 1983.

Now then, the second question becomes, what common law immunity do we have as a private person?

I would submit that by contract the State of Tennessee denied us sovereign immunity so we are in a different position than our public counterparts, who are correctional officers.

Sandra Day O’Connor:

Well, you just say that liability under section 1983 ought to go hand-in-hand with a qualified immunity defense.

Charles R. Ray:

Justice O’Connor, I think that that would be the common-sensical approach, and I recognize that Wyatt v. Cole was out there I think on the cutting edge of 1983 jurisprudence in that the Court found that there was color of law and amenable to suit because they utilized the replevin and garnishment statutes and went on to find that, because they were two cattle barons in a, if you will, spite suit, that qualified immunity didn’t attach, and I don’t disagree with that.

Sandra Day O’Connor:

Well, it has some relevance, though, here, and the question is, are we just going to apply that notion in this context?

Charles R. Ray:

I would submit, Justice O’Connor, that where a private actor is acting under the color of law, amenable to suit under 1983, coupled with the fact that they are performing a core governmental function that traditionally and historically has been part of the police power of the State, that the reasonable approach would be to grant them qualified immunity.

Antonin Scalia:

Why isn’t it reasonable to say, look, this is an extraordinary exception, that you hurt somebody and you’re not liable.

You have this qualified immunity.

We want to limit it to those functions that are really core Government functions, and it doesn’t seem to us that regardless of whether it used to be a core Government function, the Government isn’t that serious about the function if it’s willing to farm it out.

Why, just as a means of keeping the Governments honest, don’t we say, if you’re really serious that this is core Government functions, you want this qualified immunity, you have to have your own people doing it.

You can’t farm it out to private individuals.

If you’re that concerned about it, you’d exercise master-servant supervision over what’s going on.

This State hasn’t, so the State doesn’t care that much, so why should we give qualified immunity?

Charles R. Ray:

Justice Scalia, I beg to differ.

Charles R. Ray:

The State cares a great deal.

The State has on-site a functionaire designated as a liaison who oversees on a day-to-day basis how we run South Central Correctional Facility.

Antonin Scalia:

Yes, but I don’t want to have to look into this on a case-by-case basis.

I mean, we’re talking about a general rule of law, and why shouldn’t the general rule of law be, look, if you’re as much in control of it that it’s your own servants who are doing the thing, then we’ll consider qualified immunity, but if you’re insouciant enough to farm it out, whatever controls you put, we’re not going to give qualified immunity.

Charles R. Ray:

Justice Scalia, I submit that the jurisprudence of this Court has always been that the States are free, as the hothouses of democracy, the laboratories of democracy, if you will, to attempt to chart their own course in how they delegate the duties, how they go about doing what they want to do.

If the State of Tennessee thinks it better serves its citizens to contract out the running of the prisons, then that is an issue that’s left to the State of Tennessee.

Now, whether this Court wants to decide an immunity question on that basis I would submit that that’s clearly antithetical to what this Court’s done in the past.

That’s like the amici arguing that you should consider whether or not insurance comes into play, or whether we choose to indemnify our employees, or whether we choose to do… to give bonuses, et cetera.

All of these things are things that the State of Tennessee has taken into account when they initially decide that we’re going to contract out at least part of our corrections facilities and compare whether a private run facility can operate more efficiently to be to the taxpayer’s interest, or whether we should keep this governmental function our own, and I submit that once a State makes that decision, that’s a valid and legitimate decision the State has a right to make.

Ruth Bader Ginsburg:

And you would extend that to all contracting out to do a custodial job?

Say, you’d apply the same thing to day care centers, that all the employees of the contracting… of the Government contractor would have qualified immunity?

Charles R. Ray:

No, Justice Ginsburg.

I believe that it should be maintained within the confines of this existing… of this Court’s existing jurisprudence.

Since Procunier v. Navarette has been decided that State prison guards, and then Cleavinger v. Saxner Federal prison guards are… have the right to have the qualified immunity doctrine applied in their favor, I would submit that it’s core governmental functions of that nature–

Ruth Bader Ginsburg:

How about education, and the Government saying our own schools are rotten so we’re going to contract out that function to a private company that’s going to do it for money?

Charles R. Ray:

–Again, I think that would be a legitimate end of State Government to do that.

Ruth Bader Ginsburg:

But would those, the employees that you–

Charles R. Ray:

I would say no, because this Court has never extended qualified immunity to educational facilities.

In fact, I think there’s one case dealing with a contractor who provided educational service to the prison that attempted to invoke qualified immunity doctrine which was rejected by this Court.

William H. Rehnquist:

–Wood v. Strickland was a school board, wasn’t it?

Charles R. Ray:

That’s correct, Your Honor, a school board, but again, that was a question of the discretion that the school board exercises in fulfilling its function, and–

Stephen G. Breyer:

Are private schools liable under 1983?

Charles R. Ray:

–Mr. Justice Breyer, I would think that the acting under color of law coofficial would be missing from that particular… but–

Ruth Bader Ginsburg:

I wasn’t talking about a private school.

I was talking about, it’s… the State has been running these day care centers and they haven’t worked out very well, so the State decides it, not parents paying tuition to a private school, but the State is going to replace its own operation with a contracting-out arrangement.

Charles R. Ray:

–Well, again, I think it would be dependent upon the amount of discretion that the officers utilized in furthering the public good and what this Court’s jurisprudence had been in the past about conveying qualified immunity to actors of that nature, and it would be my belief that in the example you’ve given, Justice Ginsburg, that qualified immunity would not attach to that particular function.

But here we have a function that on a day-to-day basis I can’t think of any other governmental function that utilizes as much discretion in dealing with a populace or a segment of the population that this Court has recognized where there’s an unremitting tension between the keepers and the kept, and an unremitting tension between those folks that are being confined for antisocial behavior, who have a proclivity to make use of the court system in some cases for frivolous and vexatious litigation, and that it’s the public good that is to be served by qualified immunity.

It’s not Mr. Richardson or Mr. Walker that the benefit is meant to be conferred upon.

It’s the belief by this Court that Mr. Richardson and Mr. Walker should have the right to carry out this governmental function with discretion, without timidity, to take care of business free from vexatious and frivolous litigation.

Stephen G. Breyer:

That, of course, is why I’m interested in this private part, because pure tort law, if it does apply to this private person like any other private person, would make this all meaningless, what you’re saying, because the person would have a cause of action, the injured person, under State tort law, and it really wouldn’t matter, and unto all these incentives, and which way the contract cuts and so forth would all be totally irrelevant, really, because it wouldn’t matter.

Charles R. Ray:

Justice Breyer, the only way I can answer that is a practical… practical… what happens in the real life out there.

These writ-writers all go to Federal court under 1983, for whatever reason.

The State court’s there for them.

Sandra Day O’Connor:

Well, probably for attorney’s fees, don’t you suppose?

We’re arguing about attorney’s fees here?

Charles R. Ray:

I think not, Justice Breyer.

Antonin Scalia:

Mr. Ray, I assume if that’s a problem for the private contractor officer, I suppose it’s also a problem for the State-employed officer.

He can be sued under State tort law, can’t he?

Charles R. Ray:

That’s correct.

Antonin Scalia:

Does he have qualified immunity under State tort law?

I don’t know.

Charles R. Ray:

If I could answer that question–

Antonin Scalia:

If he does, your argument would be the State should make the same extension to contractors that you’re asking the Federal Government to under 1983.

Charles R. Ray:

–Well, for whatever reason, they chose not to.

Antonin Scalia:

The State has chosen not to?

Charles R. Ray:

Well, they’ve chosen not to grant us sovereign immunity, which their public correction officers would have benefit of.

What that means is, you have… your suit is brought–

Antonin Scalia:

You cannot bring an individual suit against a correctional officer who has beaten you up, just a tort suit?

I’m not suing the State.

I’m suing this individual.

I’m saying, you know, this is a bad guy who has hurt me.

Charles R. Ray:

–It would be my belief you would have to go through the court of claims.

William H. Rehnquist:

He’d have to–

–So you’re not trying to impose liability on the State?

You’re just trying to sue the individual?

Charles R. Ray:

Again, Mr. Chief Justice–

Stephen G. Breyer:

You normally sue… you normally sue… I think in most States you sue a tort for tort, but there is an immunity that attaches to actions of a Government official under ordinary tort law.

The exact scope of it I couldn’t tell you, but that’s where qualified immunity comes from.

It’s a transplant from that basic tort law principle.

At least that was my understanding.

Charles R. Ray:

–That’s correct, Justice Breyer, and as elucidated by this Court in Pierson v. Ray, the analogy to the good faith defense that a police officer would have had at common law to such a claim.

If I could reserve the rest of my time, if there’s no other questions.

William H. Rehnquist:

Very well, Mr. Ray.

Mr. Vladeck, we’ll hear from you.

David C. Vladeck:

Mr. Chief Justice, and may it please the Court:

This is a damage action brought pursuant to section 1983, and that provision broadly imposes liability on any and every person who, acting under the color of State law, deprives a person of constitutional rights.

It contains no explicit immunities or exceptions.

And nonetheless, this Court has recognized that when Congress enacted the Civil Rights Act back in 1871, it did not intend to abrogate wholesale the immunities that existed at that time.

Rather, this Court has said, and it has said it as recently as Wyatt v. Cole, that it will recognize immunities where, but only where, two conditions are met.

First, that there is some firm historical antecedent for the immunity, and second that there are strong policy considerations consistent with the purpose of section 1983 that preserve the preservation of the immunity, and both conditions need be met.

John Paul Stevens:

But isn’t it also true that we’ve often said that the scope of the immunity is measured by the function being performed by the defendant in the office he held, and the function being performed by these private companies is precisely the same as a public function.

David C. Vladeck:

Yes, though the Court has, even in cases that post date Harlow, always looked at the historical basis.

The only–

John Paul Stevens:

Yes, but the history is that this function is one that has been entitled to… has generated immunity.

David C. Vladeck:

–That is correct, Your Honor, but this function, performed by State officials subject to the constraints that normally apply to State actors, and–

Antonin Scalia:

Mr. Vladeck, can you say for sure that immunity was never extended to nonemployees of the State?

I mean, the example brought forward by Mr. Ray is an impressive one.

That is, it certainly was the tradition at common law, and it still is the practice in England to have prosecutions conducted by barristers hired by the Crown.

I expect that was the case in the early days in this country.

Did those private prosecutors not have any immunity?

David C. Vladeck:

–The only case of this Court that addresses that issue is Tower v. Glover, which involved not a prosecutor but a public defendant, and this Court, relying both on history and public policy grounds, held that that… that person was not entitled to the immunity that was sought in that case.

Stephen G. Breyer:

So if we have a lay magistrate system in this country the judges will lose their immunity, too.

David C. Vladeck:

Well, Your Honor, judicial immunity is a different branch of sovereign immunity than the immunity that we’re speaking of here today, and that gets back to my fundamental point, which is that there is no historical antecedent for immunity at common law for nongovernmental actors, particularly in torts involving the abuse of Government power.

Antonin Scalia:

You say for sure that… you know for sure–

David C. Vladeck:

Well–

Antonin Scalia:

–that prosecutors at common law, private barristers who prosecuted on behalf of the Crown, had no immunity?

David C. Vladeck:

–I do not know that for sure.

Antonin Scalia:

I don’t, either, but I would be surprised if they didn’t.

David C. Vladeck:

Well, Your Honor, the only discussion of that issue I’ve seen in this Court’s case is in Tower v. Glover.

John Paul Stevens:

In fact, even in England, isn’t it true that the hue and cry that was raised to chase the fleeing felon often enlisted the help of all sorts of private citizens in performing police functions in apprehending fleeing felons?

David C. Vladeck:

I think that is very different.

I do not know whether those parties had immunity.

The only historical evidence we have here is in the brief of the ACLU, which looks at the practice that existed in the turn of the century for privatized prisons.

Private prisons were common in the late 1800’s, and there are cases from that time involving private jailers who engaged in tortious conduct and they are not afforded immunity.

William H. Rehnquist:

This is… you’re not talking about 1983 cases, I take it, but just State tort law cases.

David C. Vladeck:

Your Honor, some are State tort law cases.

Other are Federal cases brought in Federal court.

The reported decisions do not state the basis for Federal jurisdiction, so I do not… I can’t tell you for a fact that these were 1983 cases.

William H. Rehnquist:

Could have been diversity?

David C. Vladeck:

I suppose so, Your Honor.

Antonin Scalia:

Well, was there any question about whether, in any of those cases about… I mean, weren’t they the most outrageous violations of law, that there wouldn’t be any question of whether the law was clear or not?

David C. Vladeck:

Well, I–

Antonin Scalia:

I mean, you know, if the immunity question wasn’t even involved in the case they’re not very good authority.

Everybody agrees you can sue these people.

David C. Vladeck:

–Well–

Antonin Scalia:

So the existence of suits doesn’t prove anything.

David C. Vladeck:

–No.

The question that this Court has looked to in every single case involving the question of whether an individual is entitled to immunity has looked first at the question of is there historical antecedent, and the burden on showing historical antecedent has always been placed on the proponents of the immunity.

This Court has ruled again and again that because immunities interfere with the enforcement of constitutional rights, the burden is on the proponent to explain both the historical basis and public policy arguments that support it.

The petitioners have never argued that there’s a historical antecedent.

The courts that have looked at this–

Antonin Scalia:

Sure they have.

Their historical antecedent is, their argument goes like this.

What counts is the function.

There is plenty of historical antecedent for this person performing this function to be given immunity.

It’s plenty.

And your response is, well, performing the same function, but he wasn’t employed by the State, and I… it seems to me that’s a good rebuttal argument, but I don’t think you can say that they haven’t brought forward any historical antecedent.

David C. Vladeck:

–Well, it is true that in common law Government prison guards had immunity, or had a defense that is now called an immunity, but there were… there was quite an extensive experience with private prisons, and there is no evidence that any of those actors were ever accorded immunity either in our jurisprudence or in the English jurisprudence.

And to the extent that people have looked at it, the cases that exist… and I agree, they’re not perfect on this, but do not accord private actors immunity.

But in any event, the policy considerations that I think are germane here argue very strongly against giving governmental immunity to private actors.

David C. Vladeck:

Our main reason is this.

Placing governmental power in the hands of private actors is bound to increase the risk of constitutional torts, and I say that because the key constraints… qualified immunity is a tradeoff.

On one hand we accept the fact that there will be unremedied and undeterred violations of law because we find it necessary for Government to perform those functions.

It is an altogether different matter when we are transforming Government power to private actors who may operate in very different ways with very different incentives.

For example, here, the prison is being run by a for-profit corporation.

Corporate… corporations, including prison corporations, have a duty to maximize their profits.

William H. Rehnquist:

Well, don’t they also have a very strong motive to avoid paying a lot of damages?

David C. Vladeck:

Well, they have a motive to avoid paying damages if there’s something in place to keep that motivation present.

The problem with qualified immunity is it removes the deterrence to do precisely that, Your Honor.

Stephen G. Breyer:

Well, why is it… I don’t see any difference.

I know you’ve made a big point of this in your brief, but I don’t really see it.

Why doesn’t the… a corporation wants to save money.

So the Government doesn’t give a damn.

They always blame somebody else.

But boy, when money’s at stake, they get busy–

David C. Vladeck:

Well, the easiest way–

Stephen G. Breyer:

–and therefore they will really hew the line.

They will… they don’t want these judgments, and therefore, whatever reason we have for giving qualified immunity to private… to public officials, we’ll just apply the same there.

I mean, why does the fact that they make money mean they’re more likely to violate people’s rights?

You could as easily argue it’s less likely.

David C. Vladeck:

–It is for two reasons.

Stephen G. Breyer:

I’m not saying it is less likely.

I just don’t see that it’s more.

David C. Vladeck:

Well, my first answer, Justice Breyer, is, if we don’t know the answer to that question, then the decision should be made by Congress, not this Court, because unless it is clear that the risks of conferring qualified immunity are not substantial and will not do violence to the policies in 1983, this Court has always said we ought not to proceed.

Stephen G. Breyer:

Why doesn’t it… look.

The… suppose I were inventing the system, which I won’t do, but you might have no qualified immunity for anybody, and just have an insurance policy, which would put terrifically accurate incentives on public officials, but that isn’t our system.

We have qualified immunity.

So if our system is qualified immunity, it must be because we want the people performing this function to feel not totally worried that they’re right at the line.

If that’s the reason, why doesn’t that reason apply here with equal force?

David C. Vladeck:

Because the Court has said, in cases like Harlow, that in addition to whatever economic incentives that you’re basing your question on, there are other constraints that operate on public officials that certainly are absent here.

Stephen G. Breyer:

Like what?

David C. Vladeck:

In Harlow, of course… excuse me.

In Nixon v. Fitzgerald the Court was talking about political accountability, and those constraints operate on public employees in a very real and very immediate way.

Stephen G. Breyer:

So that’s the problem.

Do you think that the money is less of a restraint, or more?

David C. Vladeck:

I think money is a restraint.

William H. Rehnquist:

What kind of public accountability do State-paid prison guards have?

David C. Vladeck:

Well, they are… they work in a very hierarchical, Civil Service system.

They give oaths of office.

They are subject to–

William H. Rehnquist:

There are intimations in your brief that the public employees kind of do it as a labor of love, and that may be true at some levels, but certainly not at the prison guard level.

David C. Vladeck:

–No, Your Honor, I agree with that, but our point is not solely that the motivations of prison guards… here, of course, they’re not simply prison guards.

They’re shareholders of the corporation for which they work.

It’s not simply their motivation.

It’s they work within a structure.

It is the nature of the employer that is significant, and here–

Ruth Bader Ginsburg:

If the head of the operation were a State official… let’s take a volunteer fire department, where the fire chief is a public employee.

Everybody else is a private citizen.

What then?

David C. Vladeck:

–I still think… I think there’s a continuum along which greater State control may be an element, but as long as there’s a divided loyalty problem like you have here, where the correctional officers serve two masters, not one… they serve the shareholders as well as the State… you have problems of constitutional violations.

David H. Souter:

Well, I take–

–Well, but why doesn’t the impetus for what you call public accountability work exactly the same way in this case with the accountability of a contractor to the person who may or may not renew the contract?

If there’s a lot of trouble the next time around I suppose the State is going to say, gee, we ought to find somebody who doesn’t seem to create so much trouble for us.

Why isn’t that just as much and perhaps more of an impetus than what you call political accountability?

David C. Vladeck:

There is supervision, biennial supervision by certain of the committees of the Tennessee legislature.

That, of course, is much more sporadic than the kind of public oversight that ordinarily obtains with public entities.

But when this legislation was passed, the one principal reservation was made by the Attorney General of Tennessee, who said… and this is obviously a paraphrase, but our concern is that suppose something goes wrong with this contract.

It is very difficult to substitute a new provider, if you will, on the spur of the moment, and so in some sense we are locked in and we’re stuck with the contractor that we….

David H. Souter:

Well, we’re stuck with the contract for the contract period, but all contracts are going to be renewed at some point.

David C. Vladeck:

That is correct, and there is some oversight, but that is very different than the day-to-day public accountability that we presume constrains the activities of our public officials.

David C. Vladeck:

That was part of the–

Sandra Day O’Connor:

Well, I take it the Solicitor General doesn’t quite take your approach here, because as I read the brief, would advocate that qualified immunity be recognized for some private contractors.

David C. Vladeck:

–I think that is correct, Justice O’Connor, but to the extent that a clear line could be discerned in the Government’s brief, I think they point to the same two factors that we do.

One is the lack of divided loyalty.

In all of the hypotheticals that are given in the Solicitor General’s brief, the contractor owes its… or his or her loyalty to the Government, and the second portion of their test, as I understand it, is direct and active governmental supervision.

Neither of those factors are present here.

This is a classic turnkey operation in which the State has essentially given over to CCA, the Corrections Corporation of America, the responsibility for the day-to-day operations of this prison.

David H. Souter:

Well, does your argument, then, across the board depend on the proposition that making money for shareholders or losing money, or the threat of losing money, is a less powerful motivating factor to keep people behaving properly than responsibility to voters, or general considerations of patriotism?

I sort of wish you were right, but I’m not certain that that’s correct.

David C. Vladeck:

Well, Your Honor, in part I’m relying on what this Court has said in its prior immunity cases.

These are not my own views.

David H. Souter:

But is that a necessary proposition?

That is, if I don’t think that, then would I have to decide the other way?

David C. Vladeck:

Well, I think if you look at the economic incentives, the provision of qualified immunity is the wrong way to go about enforcing compliance with the civil rights laws.

If you’re simply looking at it dollars and cents, qualified immunity will save the Corrections Corporation of America, assuming that it indemnifies its employees and pays for their litigation expenses, an enormous amount of money, and removes the incentives–

Sandra Day O’Connor:

Well, it still costs money to come all the way up to the U.S. Supreme Court and fight some issue on qualified immunity.

This doesn’t come cheaply.

You have to have lawyers go in, assert it, get it… it’s expensive, and it is in the economic interests of the private contractor to avoid even that.

They will make more money if they aren’t dragged into court at all, so they have every economic incentive to behave in ways that will keep them out of court, period, don’t they?

David C. Vladeck:

–Well, that… that may be so, Justice O’Connor–

I would think so.

David C. Vladeck:

–but if that is the case, then their plea is misdirected.

They ought to go to Congress and make that argument, where Congress can engage in the kind of fact determinations that this Court has said in the past–

Sandra Day O’Connor:

Oh, I don’t know.

It goes to me to the balance that you weigh here, what our concerns are.

I think they do have an economic incentive to behave in ways that won’t get them even as far as a qualified immunity issue.

David C. Vladeck:

–Let’s take this case, for example.

Here, when the prisoner was transported to South Central Correctional Facility the original transportation was done by State correctional officers.

They recognized because of his bulk, and because of his size, they ought to take the ankle shackles and put them on his wrists, leaving his ankles unshackled, and when the transfer was made the State correctional officers told the CCA employees that this is the way he ought to be handled.

The CCA employees ignored that and shackled both his wrists and his legs, leading to his injuries.

Antonin Scalia:

And you think that’s because they were private employees–

David C. Vladeck:

No, I–

Antonin Scalia:

–not because they were stupid or mean or anything else.

David C. Vladeck:

–It could have been all–

Antonin Scalia:

There’s something inherent in the nature of private employees that would have made them the stupid ones rather than the… I don’t see that.

David C. Vladeck:

–I didn’t finish, Justice Scalia.

Okay.

David C. Vladeck:

Let me try to respond directly to your question.

The transportation of prisoners is done at a flat fee.

The better you do it, the more personnel you do it, you’re not going to make any more money, and the problem that this case presents is, there’s inevitably a tension… when it comes to spending money or safeguarding prisoners’ rights, there’s inevitably a tension here, and here, I submit–

Antonin Scalia:

You really think that these employees have the… I mean, they’re wonderful employees if they have the financial well-being of the corporation so much in mind that they know that by whipping this prisoner along a little bit faster the corporation is going to make more money and that makes them feel good?

I can’t imagine that that’s in their mind.

David C. Vladeck:

–I don’t divorce the employees from the context in which they work, and here what I’m saying is that because corporations have a duty to their shareholders to maximize their profits, that puts the needs of the corporation potentially on a collision course with the constitutional rights of their employees, and that is the danger of giving qualified immunity to private actors who are not subject–

William H. Rehnquist:

You know, just from my own experience in private practice, private concerns are much more cost-conscious and willing to settle and willing to avoid liability than governments, which traditionally feel as I gather, that you know, we don’t need to worry about how much this is costing us because we’ve got a principle at stake.

I think your argument really proves the other thing.

David C. Vladeck:

–Well, Your Honor, all I can say is that one of the principal goals of section 1983 is to deter civil rights violations.

That’s why… part of the reason why it was enacted, and it seems to me that if you put governmental power in the hands of private actors who are not subject to the constraints that we normally think inhibit unconstitutional acts by Government officials, that is a very risky proposition that counsels against extending qualified immunity to private persons here.

Ruth Bader Ginsburg:

Do you agree with the Solicitor General on how you treat the doctors who have a contract to attend to all the inmates who get sick?

David C. Vladeck:

I do not know whether there’s any common law basis for affording those kinds of contractors who work within the governmental structure as it exists, who take supervision and direction and control from governmental prison officials, whether they have been accorded immunity in the past.

But I would urge the Court to retain the historic first question that is always asked in qualified immunity cases, which is simply–

William H. Rehnquist:

Thank you, Mr. Vladeck.

David C. Vladeck:

–Thank you.

William H. Rehnquist:

Mr. Kneedler, we’ll hear from you.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court:

It is the position of the United States that guards employed by a private corporation that is operating a prison pursuant to a contract with the State for the operation of that prison are not entitled to invoke qualified immunity under section 1983 solely by virtue of the fact that they are performing functions that are similar to those performed by a publicly employed guard.

However, as we explain in our brief, there are other circumstances not present in this case in which we do believe that private persons should be entitled to invoke immunity.

Some of those have been referred to here, and some of them in fact have distinct common law antecedents.

There are… there’s a common law recognition, for example, for private judicial activities in the area of arbitration.

There are common law antecedents for private citizens helping to find… to capture fleeing felons.

There are common law antecedents for immunities for informants and other volunteers, such as volunteer fire companies.

Edwin S. Kneedler:

Where… in situations where the Government cannot get the assistance of private persons in the performance of public functions, the law has long recognized immunities or defenses, and we think in those circumstances that correspondingly under 1983, or Bivens, when a person is acting under color of law, that there would be also a basis for doing that.

Antonin Scalia:

Do we know that that isn’t one of those situations?

That is to say, do we know that private companies, deep pockets, apparently, do not have the sovereign immunity that the State has and who are liable, you know, for vicarious master-servant liability for their individual functionaries, is it clear that they would take on these contracts and perform that governmental function if, indeed, they didn’t have comparable qualified immunity to the one that the Government s own prison guards–

Edwin S. Kneedler:

I think there are really two questions, and that is whether the private corporation would be able to attract employees to serve as their guards, but then beyond that the question would be whether the State could accomplish the function of housing prisoners if that weren’t so.

And we know from history that the States have operated prisons themselves and have been able to hire employees and attract employees and give them the security of their job.

In fact, that’s one of the functions of qualified immunity in the public sector.

Stephen G. Breyer:

–If that’s true, then… you’re not going to know the answer to this either, I bet, because I bet there is no answer, but try it, but my impression, the qualified immunity thing, it’s a creation by this Court interpreting a statute that rests upon common law tort law, and the kinds of immunity that under common law tort law went with public officials.

So if we’re going back to history I would be quite interested as to how the States, again, have applied their common law tort law to people who suddenly privatize, take over State functions.

If, for example, they were to say, no, there is no immunity, you’re treated just like Joe Blokes out in the street, that would support your historical argument very much, because then they would have evolved tort law the same way, and the opposite would be the opposite, and you’re going to tell me you don’t know because it probably hasn’t come up yet.

Edwin S. Kneedler:

No, my understanding is that that is, that that distinction does exist in tort law.

Stephen G. Breyer:

All right.

So what happens?

Edwin S. Kneedler:

For Government officials… and this is really the issue in this Court’s decision in Westfall, which dealt with the qualified immunity of Federal employees from State common law torts.

The Court there referred to the fact that at common law employees were absolutely immune, essentially for acts performed within the scope of their discretion, and the Restatement of Torts refers to that same immunity for public officials acting within the scope of their discretion.

There is no comparable immunity as such for private–

Stephen G. Breyer:

No, but now what happens when… exactly right–

Edwin S. Kneedler:

–for private persons.

Now, I’m not aware of any law dealing specifically with contracting out, but I see no reason why contracts awarded to a private corporation for service contracts in this case, or procurement contracts, either way I see no reason why a private corporation in its ordinary functions, whether it’s performing a contract for another private person or the Government, would not be subject to the… as a general rule, the same rule, that there would not be a comparable immunity.

Now, there may be defenses at common law, and for example, there are privileges or defenses… these things had different labels at common law for… and I’m sure the guards here would have a defense, even a private person would, in assisting in an arrest, and I’m sure that there would be a good faith defense recognized at common law in Tennessee… not an immunity, but a defense in terms of the force that was reasonably believed to be necessary by a guard to restrain someone.

That would be a privileged battery, and the question would be whether the battery would be… was reasonable.

But–

Antonin Scalia:

–Mr. Kneedler, you’ve confused me now.

I thought when you began you acknowledged that there were some instances in which qualified immunity was given to private people where you said it was necessary to call for the services.

Edwin S. Kneedler:

–Right.

Antonin Scalia:

Now you’re just… I thought you’re just saying now that there aren’t any instances.

Edwin S. Kneedler:

No, no.

I was explaining the general common law rule of torts that the absolute immunity for Government actors did not apply in the private sector, but even under the common law there were–

Antonin Scalia:

We’re talking about qualified immunity here, though.

We’re not talking about absolute–

Edwin S. Kneedler:

–No, but I think that there is some parallel as Justice Breyer was suggesting in the tort law to support a distinction between people who are public employees and people who are employees of private corporations, but even under contracts, I do want to make one important point.

Edwin S. Kneedler:

If a person operating under a contract is acting pursuant to a specific governmental directive, either in the contract that something shall be done in a certain way, or directives in a particular case that something shall be done in a certain way, we believe that qualified immunity should attach to that, because in that situation it is not the private actor but the government that is really accountable for that, and the Government agent or official who made that decision has been responsible for balancing the costs and benefits of doing that.

I do think that there is an important distinction, both as a matter of history, constitutional law, and common sense, between Government and private corporations, between the Government way of doing things, or the Government model, and the private market model.

For one thing, Article VI of the Constitution requires every executive officer of a State, of the State or Federal Government to take an oath to support the Constitution, and those heads of executive departments, including the State correctional department, have direct responsibility and political accountability for those who work for them.

In that climate it is… I think the courts have been willing to assume the regularity of governmental operations.

Government officials will be trained, but in any event they will be subject to direct political accountability.

When a function is being performed by a private contractor, the Government can’t step in and correct–

William H. Rehnquist:

–When you say political accountability you mean the electorate, I suppose.

Edwin S. Kneedler:

–The electorate and public attention, public scrutiny on the acts of public officials.

That’s not to say that the–

William H. Rehnquist:

Well, does that… do you think there would be less, say, media attention on a prison riot if the… if prison officials and the workers were contract prisoners than if they were Government employees?

Edwin S. Kneedler:

–No, there wouldn’t be less media attention, but I believe it may be that the public would hold the public warden or correctional superintendent more directly responsible for what happened, and perhaps properly so.

William H. Rehnquist:

Why on earth would that be?

Edwin S. Kneedler:

Because the direct supervision of the guards on a day-to-day basis, anyway, is not the responsibility of the head of the correctional department.

The Government has turned over as a package the entire operation of the prison, and there are a series of financial and other incentives for the contractor to both protect the security of the prison and protect private rights.

That includes not just what happens in individual guard decisions but the broader questions.

The contractor has to decide, the training, the security measures, the way facilities are designed, the programs, all of–

Antonin Scalia:

Well, you’d better be very careful in picking the contractor.

It seems to me you can get just as mad at the State governmental corrections director for being very negligent in his selection of contractors as you can get mad at him for being negligent in his supervision of people who–

Edwin S. Kneedler:

–Right.

I’m not saying that there’s no responsibility, but we do believe that it’s attenuated and that in fact there’s a pretty important break in the chain of control.

The very act of contracting over the operation of an entire institution… we’re not talking about individual doctors who may be integrated into what’s otherwise a governmental institution, but turning over the operation of an entire institution to a private corporation.

The model, then, would be that that private corporation, using whatever it believes would best promote the overall performance of the contract, to use its creativity, to use its financial resources in a way that will both win the contract the next time around and also to guard against constitutional rights, and the Government… I think this Court has been willing to assume that the accountability and the direct responsibility of the Constitution will help to deter constitutional violations.

I think that there’s less structural basis… I’m not saying necessarily empirical, but structural basis for concluding that the same assumption should not be applied in the case of private contractors, but we do urge this Court not to announce a rule that would say that immunity is not available in any case of private actors, but only in the Government contractor situation.

William H. Rehnquist:

–Thank you, Mr. Kneedler.

Mr. Ray, you have 6 minutes remaining.

Charles R. Ray:

Thank you, Your Honor.

I promise you I won’t use that.

In response to the Government, I really submit that their position seems to be a bit elitist, that doctors, counselors, those professions that you’re going to have difficulty in bringing into the contracting service should have immunity, qualified immunity, but a mere prison guard, where the rubber meets the road, somehow they don’t warrant qualified immunity, and I would submit that–

Ruth Bader Ginsburg:

Mr. Ray, it wasn’t quite that way, because they said the person who is helping out in the U.S. Marshalls Service, they have to get temporary people in the Marshalls Service.

I don’t think they’re talking about elite people in that regard.

Charles R. Ray:

–Well, again I would submit that if we’re going to have qualified immunity for these types of people, the people who utilize the most discretion on a day-to-day basis and need it the most are correctional officials.

Stephen G. Breyer:

Let me ask you this.

It’s probably not a very great point, because nobody’s made it on the other side, but this did occur to me.

They mostly argued this incentive thing, which we’ve been through, but if you go back into the history of these cases, I once thought that the reason this qualified immunity developed at all was the courts are focusing on a particular person who may not have insurance.

He’s a defendant, and they’re saying this poor person, you know, he’s trying to do his job, here his life is ruined, he’s stuck with $100,000 verdict… we’ll hurt the plaintiffs a little bit in order to help him out a little bit.

Now, if that was how this thing developed… and certainly Learned Hand probably had something like that in mind, I think, in Gregoire v. Biddle, all right… then it is a different world, isn’t it, where people have insurance?

Charles R. Ray:

No question about it.

Stephen G. Breyer:

And if we’re going into this different world when people have insurance, like the private companies all must under contract, then that defendant is somewhat less in need of that protection, and that… though no one’s made this, so maybe there’s some obvious answer to this, but the… if they don’t need the protection because we’re now in a new world, does that sort of hurt the whole idea of qualified immunity, at least as applied to a field where they have to have insurance?

Charles R. Ray:

In the case that was argued yesterday it was quite apparent that insurance played a great role in that particular case.

The county had insurance, whether or not it was enough.

So governments indemnify their employees just as private concerns do, and I don’t believe that this Court has ever let that particular issue decide whether qualified immunity would pass on to a certain governmental official.

And again, since Harlow, the focus I would submit has been upon what the public interest is in having qualified immunity conferred on this particular governmental official, who utilizes discretion on a daily basis.

We do indemnify our guards, but eventually that cost is going to be passed on to the State of Tennessee, and eventually passed on to the taxpayers of the State of Tennessee, so I would submit that the ultimate goal is to serve the taxpayers of the State of Tennessee, and therefore qualified immunity shouldn’t turn on whether or not there’s indemnification of our employees.

John Paul Stevens:

Well, I don’t know if that’s the ultimate goal.

The statute is… was enacted to protect the constitutional rights of people from violation by State officials, and in your hypothesis, you’ve got a constitutional violation here, but it should go unredressed because of the qualified immunity doctrine.

Charles R. Ray:

No, Mr. Justice Stevens, that’s not our policy at all.

John Paul Stevens:

You don’t need the defense unless there’s a constitutional violation.

Charles R. Ray:

Well, if our actions were objectively reasonable under the standard established by this Court, then qualified immunity attaches to it.

John Paul Stevens:

Qualified immunity attaches even though there was a constitutional violation.

Charles R. Ray:

But again, as I understand it, Mr. Richardson and Mr. Walker did not know or should not have known about their constitutional deprivation of Mr. McKnight’s rights in order for them to have the benefit.

But one thing I do want to point out, one of the reasons–

Ruth Bader Ginsburg:

I thought you said that was just down the road, when we opened this discussion.

Charles R. Ray:

–That’s correct, Justice Ginsburg.

That question has not been decided by the district court, the Sixth Circuit, and we never got that far.

But in response to one of Mr. Justice Breyer’s questions earlier, one of the specific reasons that we can lose this contract is to violate the constitutional rights of the inmates that we have in our keep, and that is quite evident to all our employees, and if we want to succeed and retain this contract, then we have to proceed down a straight and narrow path that belies the parade of horribles that the respondent and amici have raised.

Antonin Scalia:

The contract says that in so many words, don’t violate the constitutional rights of any prisoners, or just… it says that?

Charles R. Ray:

That’s one of the provisions, Your Honor.

David H. Souter:

So that you could be declared in violation of your contract during its term.

It’s not a mere problem of renewal.

Charles R. Ray:

That’s correct.

Charles R. Ray:

Written notice given for a number of reasons, constitutional deprivations being one of them, Mr. Justice Souter.

Antonin Scalia:

Is that clause subject to the qualified immunity defense?

You may end up having a defense against a tort suit but you lose the contract because you’ve violated their constitutional rights, qualified immunity or not.

That’s a real box you’re in.

Charles R. Ray:

I’m assuming… I’ve been known to put myself in such a box at 2:00 a.m. in the morning when I come in, Mr. Justice Scalia, but–

William H. Rehnquist:

Thank you, Mr. Ray.

The case is submitted.