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N. M. Stat. Ann. § 43–1-1 et seq. (1993) Ore. Rev. Stat. $ 426.510 et seq. (1995) Tenn. Code Ann. $33-6-301 et seq. (1984 and Supp. 1996) Utah Code Ann. $ 77–16-1 et seq. (1995) Wash. Rev. Code Ann. $ 71.09.01 et seq. (1992 and Supp. 1996–1997) Wis. Stat. $ 980.010 et seq. (Supp. 1993–1994)

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(* = designation that the statute does not specify)





No. 96-318. Argued March 19, 1997—Decided June 23, 1997

Respondent McKnight, a prisoner at a Tennessee correctional center

whose management had been privatized, filed this constitutional tort action under 42 U. S. C. $ 1983 for physical injuries inflicted by petitioner prison guards. The District Court denied petitioners' motion to dismiss, finding that, since they were employed by a private prison management firm, they were not entitled to qualified immunity from $ 1983

lawsuits. The Court of Appeals affirmed. Held: Prison guards employed by a private firm are not entitled to a quali

fied immunity from suit by prisoners charging a § 1983 violation. Pp. 402-414.

(a) Four aspects of Wyatt v. Cole, 504 U. S. 158—in which this Court found no § 1983 immunity for private defendants charged with invoking state replevin, garnishment, and attachment statutes later declared unconstitutional—are instructive here. First, $ 1983—which deters state actors from depriving individuals of their federally protected rightscan sometimes impose liability upon private individuals. Second, a distinction exists between an immunity from suit—which frees one from liability whether or not he acted wrongly—and other legal defenseswhich may well involve the essence of the wrong. Third, history and the purposes underlying $ 1983 immunity determine whether private defendants enjoy protection from suit. Fourth, the Wyatt holding was limited to the narrow question before the Court and is not applicable to all private individuals. Pp. 402-404.

(b) History does not reveal a firmly rooted tradition of immunity applicable to privately employed prison guards. While governmentemployed prison guards may have enjoyed a kind of immunity defense arising out of their status as public employees at common law, see Procunier v. Navarette, 434 U. S. 555, 561-562, correctional functions have never been exclusively public. In the 19th century both private entities and government itself carried on prison management activities. There is no conclusive evidence of a historical tradition of immunity for private parties carrying out these functions. Pp. 404-407.

(c) The immunity doctrine's purposes also do not warrant immunity for private prison guards. Mere performance of a governmental function does not support immunity for a private person, especially one who Syllabus

performs a job without government supervision or direction. Petitioners' argument to the contrary overlooks certain important differences that are critical from an immunity perspective. First, the most important special government immunity-producing concern-protecting the public from unwarranted timidity on the part of public officials—is less likely present when a private company subject to competitive market pressures operates a prison. A firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement by another contractor, but a firm whose guards are too timid will face replacement by firms with safer and more effective job records. Such marketplace pressures are present here, where the firm is systematically organized, performs independently, is statutorily obligated to carry insurance, and must renew its first contract after three years. And they provide the private firm with incentives to avoid overly timid job performance. To this extent, the employees differ from government employees, who act within a system that is responsible through elected officials to the voters and that is often characterized by civil service rules providing employee security but limiting the government departments’ flexibility to reward or punish individual employees. Second, privatization helps to meet the immunity-related need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service. Comprehensive insurance coverage increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability. Since a private firm is also freed from many civil service restraints, it, unlike a government department, may offset increased employee liability risk with higher pay or extra benefits. Third, while lawsuits may distract private employees from their duties, the risk of distraction alone cannot be sufficient grounds for an immunity. Tennessee, which has decided not to extend sovereign immunity to private prison operators, can, moreover, be understood to have anticipated a certain amount of distraction. Pp. 407–412.

(d) The Court closes with three caveats. First, the focus has been on $ 1983 immunity, not liability. Second, the immunity question has been answered narrowly, in the context in which it arose, and, thus, does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Third, no opinion is expressed on the issue whether petitioners might assert not immunity,

but a special good-faith defense. Pp. 413-414. 88 F. 3d 417, affirmed.

BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a disOpinion of the Court

senting opinion, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined, post, p. 414.

Charles R. Ray argued the cause for petitioners. With him on the briefs was Robert S. Catz.

David C. Vladeck argued the cause for respondent. With him on the brief were Michael E. Tankersley and Alan B. Morrison.

Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Cornelia T. L. Pillard, Barbara L. Herwig, and John F. Daly. *

JUSTICE BREYER delivered the opinion of the Court.

The issue before us is whether prison guards who are employees of a private prison management firm are entitled to a qualified immunity from suit by prisoners charging a violation of 42 U. S. C. § 1983. We hold that they are not.


Ronnie Lee McKnight, a prisoner at Tennessee's South Central Correctional Center (SCCC), brought this federal constitutional tort action against two prison guards, Darryl Richardson and John Walker. He says the guards injured him by placing upon him extremely tight physical restraints, thereby unlawfully “subject[ing]" him “to the deprivation of” a right “secured by the Constitution” of the United States. Rev. Stat. § 1979, 42 U. S. C. § 1983. Richardson

*Richard Ruda and James I. Crowley filed a brief for the International City/County Management Association et al. as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Penny M. Venetis and Steven R. Shapiro; and for the American Federation of Government Employees, AFL-CIO, by Mark D. Roth and Anne M. Wagner.

Opinion of the Court

and Walker asserted a qualified immunity from $ 1983 lawsuits, see Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982), and moved to dismiss the action. The District Court noted that Tennessee had “privatized” the management of a number of its correctional facilities, and that consequently a private firm, not the state government, employed the guards. See Tenn. Code Ann. $ 41–24-101 et seq. (1990 and Supp. 1996); see generally Cody & Bennett, The Privatization of Correctional Institutions: The Tennessee Experience, 40 Vand. L. Rev. 829 (1987) (outlining State's history with private correctional services). The court held that, because they worked for a private company rather than the government, the law did not grant the guards immunity from suit. It therefore denied the guards' motion to dismiss. The guards appealed to the Sixth Circuit. See Mitchell v. Forsyth, 472 U. S. 511, 530 (1985) (permitting interlocutory appeals of qualified immunity determinations); see also Johnson v. Jones, 515 U. S. 304 (1995); Behrens v. Pelletier, 516 U. S. 299 (1996). That court also ruled against them. McKnight v. Rees, 88 F. 3d 417, 425 (CA6 1996). The Court of Appeals conceded that other courts had reached varying conclusions about whether, or the extent to which, private sector defendants are entitled to immunities of the sort the law provides governmental defendants. See, e. g., Eagon v. Elk City, 72 F. 3d 1480, 1489– 1490 (CA10 1996); Williams v. O'Leary, 55 F. 3d 320, 323–324 (CA7), cert. denied, 516 U. S. 993 (1995); Frazier v. Bailey, 957 F. 2d 920, 928–929 (CA1 1992). But the court concluded, primarily for reasons of “public policy,” that the privately employed prison guards were not entitled to the immunity provided their governmental counterparts. 88 F. 3d, at 425. We granted certiorari to review this holding. We now affirm.


A We take the Court's recent case, Wyatt v. Cole, 504 U. S. 158 (1992), as pertinent authority. The Court there considered whether private defendants, charged with § 1983 liabil

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