In 1871, as part of Reconstruction, Congress enacted a statute subjecting people to monetary liability if they violated anyone’s constitutional rights under color of state law. This statute, now called 42 U.S.C. § 1983, is a centerpiece of federal civil rights legislation, frequently used (especially since the 1960s) to secure compensation for victims of unconstitutional police tactics, mistreatment by corrections officers, bullying by heavy-handed bureaucrats, and the like.
But, despite its apparently absolute language, § 1983 hasn’t been interpreted to always require compensation. Rather, courts have read the statute as implicitly incorporating various forms of official immunity. For example, judges and prosecutors are absolutely immune from suit for any alleged violations of constitutional rights they commit as part of their official duties. The most important immunity is the “qualified immunity” enjoyed by executive officials. Officials with qualified immunity are only subject to suit if they violate a “clearly established right.” This is especially important when courts invent (or discover) new rights—or in areas like police or prison guard work, where the relevant constitutional standards (under, say, the Fourth or Eighth Amendments) are intensely fact-based, so courts often find violations that a reasonable officer wouldn’t necessarily have known about at the time. (All this also applies to Bivens actions, the more recent, judge-made, federal counterpart to § 1983 actions.)
Qualified immunity is a well-established part of civil rights law, though it remains controversial among scholars. On the one hand, a general rule that holds officials liable would better compensate victims, and may also lead to greater accountability. On the other hand, the fear of liability might make officials overly timid and might make it hard to recruit competent people for government work; moreover, courts might shy away from recognizing constitutional violations if they were concerned that doing so would excessively burden government functions.
Qualified immunity is usually given to public employees. But § 1983 is broader than that: private parties, for instance corrections officers at private prisons, can also act under color of state law, and thus can also be liable. Are these private parties entitled to claim qualified immunity? Yes they can, in many cases, said the Supreme Court on April 17, 2012 in Filarsky v. Delia. But reconciling Filarsky with previous decisions isn’t necessarily easy, and the availability of qualified immunity in the privatization context will probably continue to be confusing.
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The earliest major case on qualified immunity for private parties is Wyatt v. Cole (1992). Bill Cole and Howard Wyatt were partners in a cattle business. When their partnership dissolved, Cole sued Wyatt in state court to recover cattle, a tractor, and other property. The legal process involved in recovering such property is called a writ of “replevin.” State law gave the judge no discretion to deny an initial writ of replevin, so the judge ordered the sheriff to seize the property sought by Cole. But some months later, after a hearing, the judge ended up ruling in favor of Wyatt and ordered the property returned. Cole refused to return the property, and Wyatt sued Cole in federal court, challenging the constitutionality of the state replevin law (which allowed for the initial seizure without a previous hearing) and seeking money damages.
A previous case had already established that using this sort of self-help statute with the help of a government official (a sheriff in this case) was action under color of state law. Now the question was whether Cole could nonetheless rely on qualified immunity to escape paying damages. The Supreme Court, in an opinion by Justice O’Connor, held that he could not.
In looking to whether qualified immunity exists for wrongly seizing property using this judicial process, the Court held, we look to whether similar immunity existed at common law in 1871. For the similar torts of malicious prosecution or abuse of process, private parties had no immunity from suit. They did have a sort of good-faith defense against a charge of malicious prosecution—but a good-faith defense is different than an immunity from suit. An immunity means one can’t even be sued, while a defense is an argument one can make during the lawsuit. The main policy reason for recognizing an immunity, as mentioned above, is to avoid making officials excessively timid and to encourage them to enter public service; this concern requires immunity, not just a defense, because the deterrent effect arises from the mere fact of being sued, and still exists even if the officials ultimately win. Only a freedom from being sued can adequately do the job.
This policy concern, the Court held, didn’t apply here: Cole was serving his private interest, not the public good, so whether or not he got immunity wouldn’t affect officials’ timidity or people’s willingness to enter public service. Cole thus couldn’t rely on qualified immunity to ward off Wyatt’s constitutional damages claim.
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The next major case was Richardson v. McKnight (1997). Ronnie Lee McKnight was a prisoner at the South Central Correctional Center in Clifton, Tennessee. McKnight sued two prison guards, Darryl Richardson and John Walker, claiming that they had violated his Eighth Amendment right against cruel and unusual punishment by placing extremely tight physical restraints on him.
It’s clear that, if the prison guards had been public employees, they would have gotten qualified immunity. But these were employees of Corrections Corporation of America (CCA). The Supreme Court denied qualified immunity, relying on Wyatt. Historically, the Court found that there was no firmly rooted tradition of immunity available to private prison guards. “Apparently the [English common] 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”; but there was nothing more general. The Court likewise found that policy considerations cut against qualified immunity. The concern over unwarranted timidity of prison guards, it held, is less present in the context of corporations in a competitive market: a firm with excessively timid guards can be replaced with a more aggressive one, and having excessively aggressive prison guards will lead to higher costs due to damages lawsuits, so such a firm will likewise be replaced. Moreover, the requirement of comprehensive insurance coverage increases the likelihood that employees will be indemnified by their employer, so the concern over attracting qualified staff is lessened. Lawsuits may distract private employees to some extent, but in light of these policy considerations, the possibility of some amount of distraction isn’t enough to justify immunity.
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Richardson also portrayed its holding as narrow, limited to cases where “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 Court reserved the question of what the result would be in the case of “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.”
Such a case finally came to the Supreme Court in Filarsky v. Delia (2012). Nicholas Delia was a firefighter in Rialto, a city in San Bernardino County, California. He felt ill after working on a toxic oil spill and, on doctor’s orders, didn’t go to work for three weeks afterwards. Because Delia had had past disciplinary problems, the city suspected that he was malingering; a private investigator hired by the city found that Delia had gone to a building supply store and bought fiberglass building insulation. Based on this, the city initiated an internal affairs investigation against Delia.
The administrative investigation interview was conducted by one Steve Filarsky, a private attorney under contract with the city. Filarsky warned Delia that he was obligated to fully cooperate with the investigation, and Delia was further warned that “[i]f at any time it is deemed you are not cooperating then you can be held to be insubordinate and subject to disciplinary action, up to and including termination.” Delia told Filarsky that he had bought the insulation because he had recently had some duct work done in his house, but that the insulation hadn’t been unpacked. Filarsky wanted to verify that the insulation hadn’t been unpacked, but Delia—on his lawyer’s advice—refused to allow a warrantless search of his house; nor did he agree to bring the insulation out of his house for a fire department employee to inspect outside. Delia finally brought it outside when Filarsky produced a letter from the city fire chief ordering him to do so.
Delia sued the city, various municipal employees, and Filarsky under § 1983 for violating his Fourth Amendment right to be free from unreasonable searches. The Ninth Circuit denied qualified immunity, bound by its own previous decision in Gonzalez v. Spencer (2003). Raul Gonzalez had sued the County of Los Angeles under § 1983; in that action, the county had hired a private defense attorney, Chandra Spencer; Spencer had cross-examined Gonzalez using confidential records from Gonzalez’s juvenile-court file which she didn’t have authorization to access; and Gonzalez had brought another § 1983 action against Spencer, claiming that Spencer had violated his constitutional privacy rights. The Ninth Circuit had held, citing Richardson, that Spencer could not claim qualified immunity.
Back to Filarsky: the Supreme Court reversed the Ninth Circuit—implicitly overruling Gonzalez—in a unanimous decision authored by Chief Justice Roberts.
The first step, just as in Wyatt and Richardson, was to look at history. The comment in Richardson about “lawyers who performed services at the behest of the sovereign” already hints at this how this came out: in 1871, “private lawyers were regularly engaged to conduct criminal prosecutions on behalf of the State,” and such private individuals were often immune from suit.
Next, the Court looked at the policy considerations supporting immunity. The interest in avoiding “unwarranted timidity,” the Court wrote, “is not limited to full-time public employees”: the government often needs to look outside its own workforce to find someone with specialized qualifications. In fact, this was one such case: the city of Rialto had hired Filarsky because it didn’t have a lawyer of its own with labor and employment expertise who had experience doing internal affairs investigations. Especially when such private parties work side-by-side with public employees, a rule that only public employees get immunity will tend to leave the private parties holding the bag, which will deter private parties from taking on such work. Moreover, allowing a suit against Filarsky would distract not only Filarsky but also the public employees involved in the case—the fire chief and others—who would probably have to testify. Finally, drawing a bright line between public and private parties doing work for government could give rise to thorny line-drawing problems, making the scope of immunity uncertain; “[a]n uncertain immunity is little better than no immunity at all.”
The Court had little trouble distinguishing Wyatt and Richardson. Filarsky was pursuing government ends; Cole was only pursuing his own. And Richardson was different because the prison guards there were working for a major corporation competing in the marketplace, subject to marketplace incentives, and operating with limited direct supervision by government. “Nothing of the sort is involved here, or in the typical case of an individual hired by the government to assist in carrying out its work.”
Filarsky was thus entitled to qualified immunity; the question of his ultimate liability depends on whether any rights he violated were clearly established. Justice Ginsburg agreed, but wrote separately to argue that there may well have been such a clear violation, so perhaps qualified immunity can be overcome here. Justice Sotomayor also agreed, but also wrote separately to stress that, in her view, qualified immunity for private individuals should be decided on a case-by-case basis. Thus, immunity might end up applying in other cases, as, for instance, “modern-day special prosecutors and comparable individuals hired for their independence.”
The Court’s language that Richardson didn’t apply to “the typical case of an individual hired by the government to assist in carrying out its work” (emphasis added) suggests that qualified immunity should be the norm for private individuals working for government, at least when they’re not organized in a corporate form and competing in a market. On the other hand, the Court’s opinion, as well as Justice Sotomayor’s concurrence, suggests that Richardson is still good law as to private prisons. Perhaps so. But, as Justice Sotomayor says, strong generalizations are elusive. What if Filarsky’s law firm had been hired in a competitive bidding process—would the case be like Richardson? What if a small municipality hired a local independent security guard as a temporary guard for its jail—would that be like Filarsky, despite a Richardson-like subject matter?
The chief judge of the Ninth Circuit, Alex Kozinski, who was on the 2003 panel that decided the now-reversed Gonzalez v. Spencer, recently said at an Emory Law Journal symposium on privatization that Filarsky puts Richardson on shaky ground. Nonetheless, Justice Breyer, who wrote Richardson, and Justice Ginsburg, who joined his opinion, joined the unanimous Filarsky decision, so at least two Justices (the other three in the Richardson majority have retired) think there’s a sound, even if fuzzy, distinction between CCA prison guards and occasional private lawyers working for municipal law enforcement. What’s certain is that between Richardson and Filarsky lies a substantial gray area, which will probably be the subject of substantial uncertainty and litigation in the years to come.
Alexander "Sasha" Volokh is an associate professor of law at Emory Law School.